The Right to Landscape: Contesting Landscape and Human Rights [1 ed.] 1409404447, 9781409404446

Citation preview

the right to landscape

Associating social justice with landscape is not new, yet the twenty-first century’s heightened threats to landscape and their impact on both human and, more generally, nature’s habitats necessitate novel intellectual tools to address such challenges. This book offers that innovative critical thinking framework. The establishment of the Universal Declaration of Human Rights (UDHR) in 1948, in the aftermath of Second World War atrocities, was an aspiration to guarantee both concrete necessities for survival and the spiritual/emotional/ psychological needs that are quintessential to the human experience. While landscape is place, nature and culture specific, the idea transcends nationstate boundaries and as such can be understood as a universal theoretical concept similar to the way in which human rights are perceived. The first step towards the intellectual interface between landscape and human rights is a dynamic and layered understanding of landscape. Accordingly, the ‘Right to Landscape’ is conceived as the place where the expansive definition of landscape, with its tangible and intangible dimensions, overlaps with the rights that support both life and human dignity, as defined by the UDHR. By expanding on the concept of human rights in the context of landscape this book presents a new model for addressing human rights – alternative scenarios for constructing conflict-reduced approaches to landscape-use and human welfare are generated. This book introduces a rich new discourse on landscape and human rights, serving as a platform to inspire a diversity of ideas and conceptual interpretations. The case studies discussed are wide in their geographical distribution and interdisciplinary in the theoretical situation of their authors, breaking fresh ground for an emerging critical dialogue on the convergence of landscape and human rights.

Shelley Egoz is Senior Lecturer in Design at Lincoln University, New Zealand Jala Makhzoumi is Professor of Landscape Architecture at the American University of Beirut, Lebanon Gloria Pungetti is Research Director at the Cambridge Centre for Landscape and People, UK

The Right to Landscape Contesting Landscape and Human Rights

Edited by

Shelley Egoz Lincoln University, New Zealand Jala Makhzoumi American University of Beirut, Lebanon Gloria Pungetti University of Cambridge, UK

First published 2011 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA

Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © 2011 Shelley Egoz, Jala Makhzoumi and Gloria Pungetti Shelley Egoz, Jala Makhzoumi and Gloria Pungetti have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice .. Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data The right to landscape : contesting landscape and human rights. 1. Landscapes--Social aspects. 2. Landscapes--Political aspects. 3. Landscape protection--Law and legislation. 4. Land use--Social aspects. 5. Land use--Political aspects. 6. Human ecology. 7. Human rights. I. Egoz, Shelley. II. Makhzoumi, Jala, 1949- III. Pungetti, Gloria. 304.2’3-dc22 Library of Congress Cataloging-in-Publication Data The right to landscape : contesting landscape and human rights / by Shelley Egoz, Jala Makhzoumi and Gloria Pungetti. p. cm. Includes bibliographical references and index. ISBN 978-1-4094-0444-6 (hbk) 1. Human rights--Case studies. 2. Landscapes--Political aspects--Case studies. 3. Landscapes--Environmental aspects--Case studies. 4. Land tenure--Case studies. 5. Climatic changes--Case studies. I. Makhzoumi, Jala, 1949- II. Pungetti, Gloria. III. Egoz, Shelley. JC571.R526 2011 323--dc23 2011021125 ISBN 9781409404446 (hbk)

Contents

List of Figures   List of Contributors   Foreword   Preface   Acknowledgements  

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The Right to Landscape: An Introduction   Shelley Egoz, Jala Makhzoumi and Gloria Pungetti

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part i the right to Landscape: definitions and concepts 2

Re-conceptualising Human Rights in the Context of Climate Change: Utilising the Universal Declaration of Human Rights as a Platform for Future Rights   Stefanie Rixecker

3

The Right Rights to the Right Landscape?   Kenneth R. Olwig

4

The European Landscape Convention: From Concepts to Rights   Maguelonne Déjeant-Pons

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The ‘Right to Landscape’ in International Law   Amy Strecker

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39

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part ii state, community and individuaL rights 6

Contested Rights, Contested Histories: Landscape and Legal Rights in Orkney and Shetland   Michael Jones

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7

Land and Space in the Golan Heights: A Human Rights Perspective   Gearóid Ó Cuinn

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8

Hunting and the Right to Landscape: Comparing the Portuguese and Danish Traditions and Current Challenges   Júlia Carolino, Jørgen Primdahl, Teresa Pinto-Correia, and Mikkel Bojesen

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9

Rights of Passage – Rites to Play: Landscapes for Children at the Turn of the Centuries   Susan Herrington

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part iii Land, Landscape, identity 10

Living with Country: Stories for Re-making Contested Landscapes   Gini Lee

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11

Indigenous Peoples’ Right to Landscape in Aotearoa New Zealand   Diane Menzies and Jacinta Ruru

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12

The Right to Land Versus the Right to Landscape: Lessons from Uluru-Kata Tjuta National Park, Australia   Jillian Walliss

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13

Claiming a Right to Landscape: Rooting, the Uprooted and Re-rooting   Shelley Egoz

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part iv competing Landscape narratives 14

Bahrain’s Polyvocality and Landscape as a Medium   Gareth Doherty

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15

Big and Small Cityscapes: Two Mnemonic Landscapes in Haifa, Israel   Ziva Kolodney and Rachel Kallus

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16

The Right to Remember: The Memorials to Genocide in Cambodia and Rwanda   Shannon Davis and Jacky Bowring

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contents

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Colonizing Mountain, Paving Sea: Neoliberal Politics and the Right to Landscape in Lebanon   Jala Makhzoumi

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part v reconfigurations, recoveries and visions 18

Relief Organism: Re-thinking Refugee Encampment at Dadaab, Kenya   Denise Hoffman Brandt

19

Tobacco, Olives and Bombs: Reconfiguration and Recovery of Landscapes in Post-war Southern Lebanon   Munira Khayyat and Rabih Shibli

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21

From the Ground Up: New Ecologies of Peace in Landscapes of Conflict in the Green Line of Cyprus   Anna Grichting Landscape Crime: The ‘Right to Landscape’ from Hell to Heaven   Gloria Pungetti and Thomas Oles

Index  

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List of figures

1 the right to Landscape: an introduction

1.1 Conceptual diagram: The overlap between landscape and human rights. 1.2 Conceptual diagram: The comprehensive nature of the right to landscape. Adapted from Makhzoumi, 2012.

3 the right rights to the right Landscape?

3.1 This mural called “America’s Progress” shows how Emerson’s vision of landscape is closely linked to a vision of American manifest destiny. The mural (ca. 1934), by Josep Maria Sert, is in the Reception of the G.E. Building, Rockefeller Center, New York City. Photo: Kenneth Olwig. 3.1a Ralph Waldo Emerson bending over (below Abraham Lincoln – wearing a stove pipe hat) handing a large beam to a workman who is working to literally build America. Photo: Kenneth Olwig. 3.2 Emanuel Leutze’ 1861 painting, “Westward the Course of Empire Makes Its Way,” is found in the Capitol Building in Washington, DC. It shows the “manifest

destiny” of America as white settlers carve a nation out of an apparently empty wilderness. This photo is of item #1931.6.1 at the Smithsonian American Art Museum. Photo: Ad Meskens. Source: http://upload.wikimedia.org/wikipedia/ commons/7/76/WLA_amart_Westward_ the_Course_if_Empire_1861_Emanuel_ Gottlieb_Leutze.jpg. 3.3 Yosemite Valley, with its steep walls, is an ideal place to achieve dramatic, picturesque, scenic views of nature. This photo was taken from a spot where the visitor to Yosemite National Park is able to park and take a snap-shot (like this one taken by the author) of a wilderness scene like the famous pictures of Yosemite captured by the photographer Ansel Adams. Photo: Kenneth Olwig.

6 contested rights, contested histories: Landscape and Legal rights in orkney and shetland

6.1 The location of Orkney and Shetland between mainland Scotland and Norway. Map produced by Radmil Popovic Department of Geography, Norwegian University of Science and Technology in Trondheim.

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7 Land and space in the golan heights: a human rights perspective

7.1 Map of Golan under Israeli occupation illustrating the five remaining Arab villages and 33 Israeli settlements. Produced by Jan de Jong and printed with permission of the Foundation for Middle East Peace. 7.2 Replanting of apple trees following attempted land confiscation in 2006. Photo: Gearóid Ó Cuinn. 7.3 Water tanks set amongst Arab orchards used to collect rain water and bypass discriminatory water quotas. Photo: Atef Safadi. 7.4 Apple trees surrounded by minefields outside village of Majdal Shams in Occupied Syrian Golan. Photo: Gearóid Ó Cuinn.

8 hunting and the right to Landscape: comparing the portuguese and danish traditions and current challenges 8.1 The Hvorslev area is dominated by intensively farmed fields intermixed with hedgerows, patches of woodland and other uncultivated elements. Photo: Jørgen Primdahl.

8.2 A hunting spot in the district of Mértola, in an area now entirely devoted to recreational hunting. Photo: Júlia Carolino.

9 rights of passage – rites to play: Landscapes for children at the Turn of the Centuries 9.1 Rings and poles, Bronx Park between ca. 1910 and ca. 1915. George Grantham Bain Collection, Library of Congress, Prints and Photographs Division, Washington, D.C. LC-DIGggbain-09468.

9.2 Maypole, N.Y. Playground between ca. 1910 and ca. 1915. George Grantham Bain Collection, Library of Congress, Prints and Photographs Division, Washington, D.C. LC-DIG-ggbain-14004. 9.3 See Saws, N.Y. Playground between ca. 1910 and ca. 1915. George Grantham Bain Collection, Library of Congress, Prints and Photographs Division, Washington, D.C. LC-DIG-ggbain-14007.

10 Living with country: stories for re-making contested Landscapes

10.1 Country/Rangelands landscapes marked and traversed, marked and worked. Photos: Gini Lee, 2008. 10.2 Mimili from above where the tawara site is to the east of the football oval adjacent the northern hills. Source: Google Earth, 2008. 10.3 The place for the tawara watiku, lizard dreaming hills and once-used ground. Photo: Gini Lee, 2008. 10.4 Flinders Ranges, Wilpena Pound and Oratunga with cloud. Source:Google Earth, 2009. 10.5 Co-existence at Glass Gorge Oratunga: Mr Glass’ hut and Adnyamathanha spring meeting place. Photo: Gini Lee.

11 indigenous peoples’ right to Landscape in aotearoa new Zealand

11.1 Te Waka landscape, New Zealand. Photo: Tim Whittaker.

12 the right to Land versus the right to Landscape: Lessons from uluru-Kata tjuta national park, Australia 12.1 The iconic monolith of Uluru

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(formerly known as Ayers Rock). Photo: Jillian Walliss, published with permission from Uluru-Kata Tjuta National Park. 12.2 The Uluru-Kata Tjuta Cultural Centre designed by architect Greg Burgess. Photo: Jillian Walliss, published with permission from Uluru-Kata Tjuta National Park. 12.3 Post hand back entrance sign. Photo: Jillian Walliss, published with permission from Uluru-Kata Tjuta National Park.

13 claiming a right to Landscape: rooting, the uprooted and Re-rooting

13.1 Itzhak Danziger, Sheep of the Negev, 1951–64 Bronze, Collection of the Tel Aviv Museum of Art. Photo: © The Tel Aviv Museum of Art, Israel. 13.2 Itzhak Danziger, Nimrod, 1939 Nubian sandstone. Collection of The Israel Museum, Jerusalem. Gift of Dr David H. Orgler, Zurich and Jerusalem. Photo: © The Israel Museum, Jerusalem. 13.3 Landscrape. Etching by Hannah Farah-Kufr Bir’im. Image: Courtesy of the artist. 13.4 Anemones at home, from Sharnaqa (cocoon) project, 2005. An instillation that evokes hope and regeneration of life. Hannah Farah-Kufr Bir’im and Hila Lulu Lin (photography). Image: Courtesy of the artist. 13.5 Stone I, 2006. Hannah Farah-Kufr Bir’im. Image: Courtesy of the artist. 13.6 Stone II, 2006. Hannah Farah-Kufr Bir’im. Image: Courtesy of the artist. 13.7 Re:Form a model. Reconstruction of the new Kufr Bir’im, 2002. Image: Courtesy of the artist.

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14 Bahrain’s polyvocality and Landscape as a medium

14.1 The wall between people and the sea is clearly visible at Zalaq village, one of the few publically accessible sea fronts in Bahrain. Photo: Gareth Doherty. 14.2 Desire lines created by walkers adjacent to a VIP road. Photo: Gareth Doherty. 14.3 Graffiti such as this indicates who owns the space, and who has access to it. Photo: Gareth Doherty. 14.4 Graffiti is used to protect properties. The example in this photograph states the first words of all but one “Sura” or chapter in the Qur’an: “In the name of God, the Most Compassionate, the Most Merciful.” Here it is used to protect the property built on disputed land since any attempt to interfere with the structure would mean destroying the sacred text and would be an affront to Allah. Photo: Gareth Doherty.

15 Big and small cityscapes: two mnemonic Landscapes in haifa, israel

15.1a Mahmud’s Garden. Photo: Ziva Kolodney. 15.1b The Treasury Garden. Photo: Ziva Kolodney. 15.2a Survey of Haifa’s Old City area – The Treasury Garden and Mahmud’s Garden sites today (outlined). Haifa Municipal Archive, 1939. 15.2b Old City map. Haifa City Archive, 1939. 15.3 Winning proposal for ‘Development of the City Center Competition’ – outlined the proposed public open space area – The Treasury Garden site today. Haifa Municipal Archive, 1953.

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15.4 The Treasury Garden. Photo: Ziva Kolodney.

Choeung Ek, tends to the grassy pits with a pair of scissors. Photo: Shannon Davis.

15.5 Mahmud’s Garden. Photo: Ziva Kolodney.

16.6 The Kigali Memorial Centre, Kigali, Rwanda; the building provides a clear marker in the landscape which is clearly visible from the opposite side of the valley in the city of Kigali, creating a memoryscape which extends far beyond the site to encompass the broader city framework. Photo: Shannon Davis.

16 the right to remember: the memorials to genocide in cambodia and rwanda

16.1 The Tuol Sleng Genocide Museum, Phnom Penh, Cambodia. This memoryscape incorporates the original school building and grounds, the remnants of the genocide including torture equipment and graves, as well as the contemporary overlay of visitor infrastructure including signage and exhibitions. Photo: Shannon Davis. 16.2 A moto driver waits outside the walls of the Tuol Sleng Genocide Museum; motos are a popular form of transport for visitors to the museum, connecting the site into the wider framework of tourist destinations in the city. Photo: Shannon Davis. 16.3 The remains of victims on display within the memorial stupa at the Choeung Ek Genocidal Centre, Cambodia; in the background the view connects the visitor to the site of the Killing Fields, creating a memoryscape which flows between interior and exterior. Photo: Shannon Davis. 16.4 The welcome mat that greets visitors at the base of the Memorial Stupa at the Choeung Ek Genocidal Centre that houses the remains of 8,000 genocide victims; the skulls are visible within the stupa, situating them within the broader memoryscape to form a contiguous space of tragedy. Photo: Shannon Davis. 16.5 Victim’s clothing protrudes from the trampled soil at the Choeung Ek Genocidal Centre as a Cambodian woman who lost both her husband and children at

16.7 Map terrace at the Kigali Memorial Centre looking back towards the city of Kigali, effectively engaging visitors with the surrounding landscape and connecting international visitors with the local context of the city expanding the memoryscape even further. Photo: Shannon Davis. 16.8 Peter Eisenman’s Memorial to the Murdered Jews of Europe, illustrating one possible landscape-based approach to memorialisation, utilising an abstract form open to interpretation. Photo: Shannon Davis.

17 colonizing mountain, paving sea: neoliberal politics and the right to Landscape in Lebanon

17.1 Map of Lebanon showing location of Sannine Zenith and Cedar Island projects. Drawing: Jala Makhzoumi. 17.2 The snow capped twin peaks of Sannine viewed from the Mediterranean coastline of Beirut (top) and from inland, typical Mediterranean rural surroundings (bottom). Photos: Wassim Turk. 17.3 View of the pristine Damour coastland set against the highly urbanized silhouette of Beirut in the distance (top) and view from the village to the Mediterranean overseeing the verdant landscapes that characterize the Damour coastal plain (bottom). Photos: Jala Makhzoumi.

list of figures

17.4 Schematic plan and aerial views of Cedar Island based on images advertised by the project website (www.noorih. net/). Expanses of land reclaimed from sea will serve as prime real estate with the following facilities. Drawing: Jala Makhzoumi. 17.5 Conceptual diagram of the discourse of landscape and public rights in Lebanon. Drawing: Jala Makhzoumi

18 relief organism: re-thinking refugee encampment at dadaab, Kenya 18.1 Social and environmental camp context. 18.2 Dadaab regional plan. 18.3 Soft Net Matrix. 18.4 Soft Net.

19 tobacco, olives and Bombs: reconfiguration and recovery of Landscapes in post-war southern Lebanon

19.1 Olives rub shoulders with mines along the dusty road that defines the militarized borderline between the warring states of Lebanon and Israel. Despite proximity to the mines, the olives continue to be lovingly tended by the inhabitants of this war-scarred strip of earth. 19.2 An old shepherd accompanying his flock through a cluster-bomb infested river-valley takes time to explain to us

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how he identifies bombs he encounters: he surrounds them with rocks and covers them with a flat stone to protect his flock of goats and cows. The bluepainted stones surrounding the bomb at his feet were subsequently identified by UN-managed de-mining crews. He will not be deterred by bombs in the landscape: “my step is sure”.

20 from the ground up: new ecologies of peace in Landscapes of conflict in the green Line of cyprus

20.1 Mauerpark, a current landscape on the site of former Berlin Wall 20 years after the fall. This park sprang from the ground up by neighborhood initiatives from both sides. Photo: Anna Grichting. 20.2 The abandoned Skouriotissa Copper mines alongside the Green Line of Cyprus viewed from the South. Photo: Anna Grichting. 20.3 Aerial view of the Buffer Zone near the village of Katotopia/Zumrutkoy, Cyprus. Source: Google Earth, 2008. 20.4 Map of the abandoned village of Vareseia in the Buffer Zone of Cyprus where a population of Moufflon has been observed by scientists. Illustration: Anna Grichting. 20.5 The Cyprus Green Line with territorial adjustments and proposed ecological landscapes. Illustration: Anna Grichting.

List of Contributors

mikkel Bojesen is a PhD fellow at the Institute of Food and Resource Economics at the University of Copenhagen. His research focuses on spatial decision support systems and economic planning concerning bioenergy production. Mikkel has a Masters in natural resource economics and forest management; throughout his studies he has gained a deep understanding of hunting and wildlife management and has been a keen hunter for several years. Jacky Bowring is Associate Professor in the School of Landscape Architecture, Lincoln University, New Zealand. She has particular research interests in landscape and memory, and explores the topic through a range of critiques, designs and related research. In 2009 her book, A Field Guide to Melancholy, was published in the UK by Oldcastle. Júlia Carolino is trained in social anthropology (PhD, MA) and sociology (BA) and a research fellow in the Research Centre in Economic and Organizational Sociology, Technical University of Lisbon. Her research interests include the co-production of social identities and spatial forms. She has conducted fieldwork in Algarve and Alentejo, Southern Portugal. Júlia is currently involved in further research on post-productive landscapes, namely the social implications of transforming a post-mining landscape into a landscape of touristic consumption in the district of Mértola, Southern Portugal. maguelonne déjeant-pons is Head of the Cultural Heritage, Landscape and Spatial Planning Division: Executive Secretary of the European Landscape Convention, of the Council of Europe Conference of Ministers responsible for Spatial/Regional Planning (CEMAT/CoE) and Editor of the Futuropa Magazine. Maguelonne has published several articles and books dealing with the protection of coastal and marine zones, biological and landscape diversity and the human right to the environment.

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shannon davis is a lecturer in the School of Landscape Architecture, Lincoln University, New Zealand. Shannon’s PhD examined the role of site design in shaping Euro-Western experience of the post-genocidal memoryscapes of Cambodia and Rwanda. Her current research interests include investigating the process of masterplanning city growth in our rapidly urbanizing world, with particular interest in designing for growth within cities in the developing context; the role Euro-western design and planning professionals play in this process is pivotal to her research. gareth doherty is a lecturer in Landscape Architecture and Urban Planning and Design at the Harvard Graduate School of Design. He has a Doctor of Design from Harvard, and a MLA and Certificate in Urban Design from the University of Pennsylvania. Gareth is founding editor of New Geographies journal and editor in chief of volume 3, “Urbanisms of Color” Ecological Urbanism edited by Mohsen Mostafavi with Gareth Doherty published by Lars Müller in 2010. shelley egoz is a landscape architect and Senior Lecturer in Design in the School of Landscape Architecture, Lincoln University, New Zealand. Shelley’s research interests and recent publications are in symbolic landscapes and the ideological power of landscape, particularly in relation to social justice, conflict resolution, and ethics associated with landscape, space and design. This interest propelled her to initiate the Right to Landscape collaborative venture at the Cambridge Centre for Landscape and People (CCLP). anna grichting is a Swiss architect and urbanist. She is the founder and director of Bordermeetings and a fellow at the Institute of Environmental Diplomacy and Security of the University of Vermont. Her work and research focus on boundary landscapes in areas of conflict, specifically on the projecting and transforming of these linear territories as biological and cultural landscapes of memory. In particular, she is working on a Digital and Dynamic Atlas of Ecological Cooperation with Dr Saleem Ali, as well as directing a Laboratory for the Green Line Landscapes of the Buffer Zone of Cyprus. She has lectured worldwide, taught at the Universities of Geneva and Harvard, and was a fellow at the MIT Urban Planning and International Studies departments. susan herrington teaches in the School of Architecture and Landscape Architecture at the University of British Columbia, Canada. She is author of On Landscapes (2009), published by Routledge as part of their Thinking-inAction Philosophy Series. Susan is currently writing a book, Cornelia Hahn Oberlander: Making the Modern Landscape, to be published by the University of Virginia Press in 2012. denise hoffman Brandt is an associate professor and director of the Landscape Architecture program at the City College of New York, and

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principal of Hoffman Brandt Landscape Design in New York City. Her work focuses on landscape as urban ecological infrastructure – the social, cultural and environmental systems that sustain urban life and generate urban form. Denise has received numerous prizes and fellowships for developing such projects, the latest being the 2009 New York Prize Fellowship from the Van Alen Institute to develop City Sink, an analysis and design proposal for urban carbon storage in soil and plant systems. michael Jones is Professor in Geography at the Norwegian University of Science and Technology in Trondheim. His research interests embrace historical geography, landscape studies and cartographical history. In autumn 2002 and spring 2003 he was leader of an international research group on the theme “Landscape, Law and Justice” at the Centre for Advanced Studies at the Norwegian Academy of Letters and Science in Oslo. He has co-edited Nordic Landscapes (with Kenneth R. Olwig, 2008) and The European Landscape Convention: Challenges of Participation (with Marie Stenseke, 2010). Geographically his research interests cover the Nordic countries and the Northern Isle of Scotland. rachel Kallus is an architect and town planner holding an MArch from MIT and a PhD from the Technion, Israel where she is an associate professor of architecture and town planning teaching architecture, urban design, and town planning. Her current professional work in housing and urban design is mostly with grassroots organizations and NGOs. Her research is on the socio-political production of the built environment and the formation of urban culture, focusing on ethno-nationally contested spaces and considering the interplay between policy measures (planning) and physical-spatial interventions (architecture). Rachel is the author of numerous publications on socio-cultural aspects of the built environment and its production in academic journals and books. munira Khayyat is a PhD candidate in anthropology at Columbia University. She conducted two years of ethnographic fieldwork in South Lebanon in the aftermath of the 2006 “July War” and is currently writing her dissertation “Seasons of War” which is about the entanglement of life and war in villages along the southern border of Lebanon. Ziva Kolodney is a landscape architect and an adjunct lecturer at the Technion, Israel where she teaches urban landscape theory and design. She holds a PhD and BLA. from the Technion and a BA in Geography from Tel Aviv University. Her professional work focuses on cultural and historical aspects of urban landscape planning and development. Ziva’s ongoing research and academic publications deal with the “politics of the landscape”, especially those of ethno nationally contested cityscapes and urban landscape production.

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gini Lee is a landscape architect, interior designer and is Elizabeth Murdoch Chair of Landscape Architecture at the University of Melbourne. Focusing on the arid environments of Australia, her multidisciplinary research into the water landscapes of remote territories contributes to the scientific and cultural and indigenous understanding and management strategies for fragile landscapes. Jala makhzoumi is Professor of Landscape Architecture, American University of Beirut. In her researcher she explores the relationship between landscape design and community development, biodiversity conservation and landscape heritage. Jala’s professional practice focuses on ecological landscape planning, and urban revitalization in Iraq, Syria and the UAE. Her latest published artwork, Horizon 101 (2010, Dar Qonboz), explores identity and alienation. Current work, a book manuscript provisionally titled Beirut Gardens, conceptualizes traditional green spaces in Mediterranean cities to inspire community inclusive greening strategies. diane menzies is Immediate Past President of the International Federation of Landscape Architects. She is a registered landscape architect, and past president and life member of the New Zealand Institute of Landscape Architects. Diane has academic qualifications in horticulture, landscape architecture, mediation, resource management and business management. In 2001 she was appointed to the New Zealand Environment Court as an Environment Commissioner and in 2009 she received the Insignia of an Officer of the New Zealand Order of Merit for services to the environment. gearóid Ó cuinn is a Wellcome Trust PhD candidate at the University of Nottingham. His research examines the role of human rights in public health emergencies such as pandemics. He has worked with the Human Rights Law Centre (Nottingham) and is involved in the production a number of human rights themed documentaries. thomas oles is a lecturer of landscape architecture and coordinator of the Living Landscape program at the Academy of Architecture, Amsterdam. His research focuses on the history and meanings of the concept landscape; the history of vernacular and cultural landscapes of North America and Europe; aesthetics and representation; and the relationship between landscape, politics, and ethics. Thomas’s book, Recovering the Wall: Enclosure and Ethics in the Modern Landscape (University of Chicago Press, 2012) argues that physical boundaries are the chief constituents of many human environments, and examines the production and meanings of walls, fences, and other markers of territory across time and space. Kenneth olwig is Professor in Landscape Planning with specialty in landscape theory and history in the department of landscape architecture at

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the Swedish University of Agricultural Sciences in Anarlp. Kenneth writes prolifically producing seminal work on landscape, ranging from the effect of cultural perceptions of nature and landscape in regional development, to the role of ideas of law and justice in shaping the political landscape and its physical manifestations. Teresa Pinto-Correia is Associate Professor at the Department of Landscape Environment and Planning and chair of the Research Group Mediterranean Ecosystems and Landscapes at the Institute of Mediterranean Agrarian and Environmental Sciences, University of Evora. Teresa’s qualifications range from Geography (Lisbon), Environmental Sciences (Europe) and Landscape Ecology (PhD, Copenhagen). Her research is in the field of rural landscape changes and management, with particular focus on the Mediterranean, and recently on issues of multifunctionality and transition processes of farms and rural landscapes. Jørgen primdahl is Professor in Countryside Planning at Centre for Forest, Landscape and Planning, University of Copenhagen. His background is in landscape planning (MLA, PhD) and his research includes rural landscapes, landscape ecology, agri-environmental policy, and collaborative landscape planning. Jørgen is co-editor of Globalisation and Agricultural Landscapes published by Cambridge University Press in 2010. gloria pungetti is Research Director at the Cambridge Centre for Landscape and People (CCLP) and Chair of the Darwin College Society at the University of Cambridge, UK. She is also Chair of 3S, RtL and Co@st Global Initiatives within CCLP, and activities to implement the European Landscape Convention. Gloria has coordinated the pioneering ECOnet and Eucaland Projects under EC Programmes, sits on the Board of Research Trusts and IUCN Task Forces, and is member of IALE and of other research groups. She has promoted a holistic approach to landscape research linking nature with culture and academia with government in Europe and world-wide, and has an extensive record of publications including 10 books, articles and governmental reports in several languages. stefanie rixecker is the Assistant Vice-Chancellor (Research and Development) at Lincoln University, New Zealand and was the Leader of the ‘Global Justice and Environmental Policy’ theme in the Land, Environment and People (LEaP) Research Centre until 2010. From 2007–2010 she was an elected member of the Governance Team of Amnesty International Aotearoa New Zealand, serving the last two years as its Chair. Her research focuses upon environmental policy and justice issues, especially in relation to the geopolitics of hydrocarbons and the human dimensions of climate change. She has published across disciplines in journals such as Policy Sciences, Society and Natural Resources, the Journal of Genocide Research, and World Archaeology.

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Jacinta Ruru is Senior Law Lecturer at the University of Otago, New Zealand, where she teaches and researches Indigenous peoples’ rights to land and water. She co-leads the University of Otago Centre of Research for National Identity’s Landscapes Project. Jacinta has recently co-edited Beyond the Scene. Landscape and Identity in Aotearoa New Zealand (Otago University Press, 2010) and co-written Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford University Press, 2010). rabih shibli is an architect and urban designer and the founder-director of Beit Bil Jnoub (House in the South), a local NGO that is active in the reconstruction processes in the aftermath of the July 2006 war in Lebanon. Rabih is also a lecturer of Landscape-Architecture at the American University of Beirut (AUB) and Projects’ Leader, Community Projects and Development Unit (CPDU)/ Center for Civic Engagement and Community Service (CCECS), AUB. amy strecker is a PhD researcher in the Law Department of the European University Institute, Florence. She is writing her PhD on the topic of landscape and international law, mainly as expressed in cultural heritage law, environmental law and Human Rights. She is actively involved with Landscape Alliance Ireland and the European Network of Local and Regional Authorities for the implementation of the European Landscape Convention. Jillian Walliss is Senior Lecturer in Landscape Architecture at the Melbourne School of Design, University of Melbourne. Jillian’s teaching interests are design studio and theory encompassing landscape architecture and urban design. Her research explores landscape as a theoretical and political construct and a design practice, with a focus on post-colonial Australia and Aotearoa New Zealand. Jillian’s PhD examined the influences of the discourses of landscape, nature and design on the formation and subsequent development of national parks and museums in Australia and New Zealand through a comparative analysis of the national museums of Australia and New Zealand and their respective national parks of Uluru-Kata Tjuta and Tongariro.

foreword

I have in my collection a photograph of a Chinese Village. Imagine its landscape. This one is likely not what you envision: it is more than twenty stories high, all polished granite at street level, gray and blond brick cladding above. Comprised of three large conjoined towers, each unit in the village has a spacious deck with a view over the smoggy expanses of Guangzhou. At ground level is the village hall and community center. There’s a fair amount of parking below ground and nearby. Apparently many of the people who belong to the village live in Vancouver or Hong Kong and rent out their units. Given the size and location of the homes, they are not likely rented to the hundreds of thousands of unsanctioned migrants who have flooded the city, but rather some of the newly wealthy, from near and far, who have made Guangzhou one of the “shock cities” of the modern world. This village, and the villagers, cashed out, and why not? Was it not precisely their right to the landscape that put them in the position of being able to profit, both collectively and individually? In the process hasn’t a new landscape, open to vastly more people, been constructed (whatever the inequalities it entombs)? And on top of that, doesn’t a pretty cool new building now grace the skyline, helping to create precisely that landscape that now so clearly represents modern urban China? Such questions seem apposite for a collection of chapters that seek “to collectively define the concept of the right to landscape and to generate a body of knowledge that will support human rights.” “Landscape” is as vexed a concept – and reality – as are “rights.” Neither is easily self-evident. If “landscape” retains affiliations with the pastoral there is no reason why it must, any more than must a Chinese village. And if a basic human right is a right to property, as is often assumed, then surely the right to sell out the landscape and move to Vancouver is as much a human right worthy of support as is, say, the right to access to the countryside, to heritage, to fresh water, or simply to be present in the landscape. Or is it? Case studies in this

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book raise the question of what kind of rights are at stake in the right to the landscape – and what kind of landscape. The European Landscape Convention, discussed here by some authors, proposes answers to these questions of what kinds of rights and what kinds of landscape. The landscape at stake is “an area, as perceived by people whose character is the result of action and interaction of natural and/or human factors,” which is to say it is everywhere, every space. The right at stake is primarily a right to participate. Indeed the Convention obliges “contracting parties” (states) to incorporate participatory planning into every landscape decision. Yet as defined in the implementing documents for the Convention, the right to participate is deeply contradictory since they declare that participatory planning must be an adjunct to expert analysis. As important an advance as the European Landscape Convention may be, and I think it is an exceptionally important advance, it also simultaneously serves to shut down struggle and debate by institutionalizing a particular, if still nebulous, definition of both landscape and rights and to open up new struggle – struggle on a plane defined precisely by this institutionalization – seeking to redefine “landscape” as a vital public good to which all have rights. All of a sudden that “human right” to property – to simply sell out if it is in one’s best interest – feels a little more precarious, as it should. In this sense the right to landscape begins to emerge as a collective right, something akin to what the legal philosopher Jeremy Waldron has termed “third generation” rights similar to the right to cultural integrity. And if we understand, along with Ronald Dworkin, that one of the key functions of a right is to serve as a “trump,” which can invalidate majoritarian bullying (as with the right to practice a minority religion), state-police power (as with the right against torture or the right of habeas corpus), or individual destruction of the public good (as with the right to clean air or water trumping the ability of a corporation to dump whatever they want into the environment), it is a vitally important third generation, collective right. But at this point it is only a rightin-the-making, and developments like the European Landscape Convention are most valuable for the new questions they pose, and especially for the way they re-established struggle for the production of the future landscape on a new footing. As is obvious from the chapters that follow, the nature of this right-in-themaking, like the nature of the landscape of the future (the landscape-in-themaking) is highly variable, with the specific histories – of Palestinian or Māori struggles, of refugee or capital flows, of “western” or indigenous law-making – mattering deeply both to the content of landscape and the content of rights. If this book does nothing else (though in fact it does much, much more) it especially and insistently raises the question of what kinds of rights the rights to landscape must be, and how these rights, universalizing as they may be, must be constructed through specific struggles in specific landscapes, seeking to shape and reshape not only the rights themselves but especially what “landscape” can possibly be – and why it is so vital in our lives. As this book

foreword xxiii

makes clear these are exceedingly important struggles – struggles engaged at the level of national and international law as well as in the orchards, city streets, crofters’ farms, playgrounds, hunters’ fields, killing fields, and even towering Chinese villages that are the landscape of now and will become the landscape of the future. And the word “struggle” is the right one: making the right to landscape not only implies, but necessitates that rights themselves will come into conflict: does the individual right to property trump the collective right to access to the countryside or seaside? Does the Palestinian right to a historical land – a landscape – and livelihood trump an Israeli right to bodily security or the right to feel safe? These are political questions with political answers, answers that are not always palatable, for as we all know, when equal rights collide, force decides. The question of the right to landscape asks us to tackle the question of who should have that force, in what ways it should be organized, and on whose behalf it should be exercised. Those of us struggling for the right to landscape will learn a lot, in the pages that follow, about how answers – which are starting points – are being worked out, right now, in an impressive range of settings and situations around the globe. Not far – maybe two kilometers – from the Chinese village I visited in Guangzhou is an older district. Built up over the course of the twentieth century, it is neither gleaming nor spacious. Balconies are for drying clothes, not gazing over the cityscape. The streets and alleys are narrow and filled with hawkers; the benches of the few open spaces serve as sleeping pads for recently arrived migrants from elsewhere in the country. Everything is overseen by an impressive network of CCTV cameras, peering down through the jerry-rigged electrical wiring. In landscape form, it looks strikingly like the Palestinian refugee “camps” of Beirut. Though some of the apartment blocks were built in a “collectivist” era in Chinese history, there is little evidence on the street of the sort of collective rights that allowed the villagers to sell out. Especially for the migrants, there seems to be little sense of an active right to this landscape, to this city. Each of the chapters in this book asks us to think seriously and hard about what a right to the landscape might look like, and even more importantly might become, if it was dedicated first and foremost to assuring “equity and social justice,” as the editors describe the struggle in their introduction, for people like the Guangzhou – or Beirut – migrants, whether they live in the Golan or within the Green Line, Orkney or Aotearoa, and whether, in fact, they are migrants or not. In doing so we might begin to find answers to the questions posed about and by landscape, about and by rights, when one stumbles upon – or lives in – 20-story villages filled with renters squatting at the heart of a city like Guangzhou. Don Mitchell Syracuse New York USA

Preface

In December 2008 Shelley Egoz arrived at Heathrow Airport for the Right to Landscape workshop at Cambridge. Coming all the way from New Zealand for a five-day visit raised the suspicion of the British immigration officer. He asked for details of what the topic of the conference was about. When told that the conference dealt with landscape and human rights the officer shook his head and stated that: “human rights have nothing to do with landscape.” He went on to explain: “I have been personally involved with human rights campaigns for many years and know what it is all about.” The discussion about the different issues related to human rights continued but it was only when the term “Indigenous people” was suggested that he conceded. The recognition that people have rights to their habitat is usually understood in a specific context of material threats to livelihood of indigenous people; the association between landscape and human rights is not immediate. The Right to Landscape is thus a challenging proposition. To introduce this new framework it is necessary to highlight the explicit relevancy of landscape to human rights. This book presents a variety of case studies in order to illustrate the applicability of the concept. Despite the perceived vagueness of the right to landscape idea, when the call for papers went out from the Cambridge Centre for Landscape and People (CCLP) to the academic community in February 2008, the response was overwhelming. The underlying rationale for the workshop’s theme that: “Landscape, [is] an umbrella concept of an integrated entity of physical environments, is imbued with meaning and comprises an underpinning component for ensuring wellbeing and dignity of communities and individuals” resonated with many scholars who could see their work expressing that proposition; it thus turned out to be a generally agreed upon axiom for workshop participants. Most of the authors in this book participated at the CCLP workshop where discussions about the concept of the right to landscape took place.

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The contributors were also asked to blindly review two other chapters in the volume. However, while we had asked each of the authors to include their own reflections on the right to landscape as it relates to their specific work, we deliberately did not offer a definition of what the right to landscape should be. We believe that with the introduction of a new intellectual concept it is best to stay as open minded as possible. We see the strength of this volume in the diversity of angles it offers the readers, in terms of the multiplicity of disciplines, the variety of writing styles and the international range of examples. We hope that these case studies are the beginning for a fresh conceptualization that will instigate discourse towards landscape and human rights becoming a commonly understood concept that contributes to the wellbeing of humans. Shelley Egoz, Jala Makhzoumi and Gloria Pungetti

acknowledgements

We would like to thank the following institutions for their support: Lincoln University New Zealand, American University of Beirut Lebanon, University of Cambridge UK, the International Federation of Landscape Architects (IFLA) and Amnesty International, UK. The generous funding through Lincoln University’s LURF & FEST SEED grants, which enabled the Right to Landscape (RtL) initiative to spring, is particularly appreciated. The RtL initiative was launched at the Cambridge Centre for Landscape and People (CCLP) workshop that took place at Jesus College, Cambridge, UK in December 2008 on the 60th anniversary of the Universal Declaration of Human Rights (UDHR). Stefanie Rixecker, Maguelonne Déjeant-Pons, Michael Jones and Kenneth Olwig very kindly contributed inspiring keynote speeches that fuelled stimulating discussions during the workshop. While some of the chapters in this volume were authored by participants at the RtL workshop, we would also like to thank all those who attended but who are not represented in this volume, their contributions to developing the concepts and discourse of the Right to Landscape through discussions during the workshop were invaluable; we thank Jana Cephas, Doris Damyanovic, Sophia Davis, Larry Harder, Helge Hiram Jensen, Irene Iliopoulou, Mili Kryopoulou, Margot Lystra and David Watts. This book is a result of a collaborative effort, with each of the chapters blindly refereed by two other authors; we are very grateful to everyone who gave their time and insights to achieve academic rigour and enriched discourse. We are indebted to Don Mitchell for his support and appreciative for him taking time among his busy schedule to write the foreword. We would also like to thank the anonymous reviewers of our book proposal for their support and insightful comments. And last but not least, we thank the team at Ashgate for making the process so smooth. It has been a real pleasure to work with them and Valerie Rose,

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the commissioning editor. Valerie was very supportive and positive since our first approach to Ashgate Publishing and all the way through the process, her encouragement and enthusiasm for the topic have been instrumental in making the production of this book a most enjoyable and gratifying experience. The Editors

1 the right to Landscape: an introduction Shelley Egoz, Jala Makhzoumi and Gloria Pungetti

Background In the course of its development, the idea of landscape has been embraced by many disciplines and used to frame scientific, political and professional discourses. The Right to Landscape is yet another framing, offering a particular discourse on landscape and human rights. The concept of the right to landscape explores in detail the role of landscape in working towards justice and human wellbeing. This is especially pertinent, we believe, for those who are engaged in research and actions that influence the form and function of the landscape. For us the editors, landscape architects Shelley Egoz and Jala Makhzoumi, and scholar of holistic landscape Gloria Pungetti, the prolific multidisciplinary body of literature on landscape forms the theoretical foundation and inspiration for the necessary visionary thinking needed to address planning, design and management of landscapes. As landscape architects whose passion, research interests and practice revolve around ethics and social justice related to the designed space, Shelley Egoz and Jala Makhzoumi sought the Cambridge Centre for Landscape and People (CCLP) that was founded by Gloria Pungetti as the ideal platform for this initiative that explores the interface of landscape and human rights.1 CCLP’s mission statement is to: “integrate the spiritual and cultural values of land and local communities into landscape and nature conservation and socioeconomic needs into sustainable development; and to support biological and cultural diversity, as well as awareness and understanding of, and respect for, landscape and nature” (CCLP, 2010a). Within this mission the initiative of the Right to Landscape (RtL) “seeks to expand on the concept of human rights and to explore the right to landscape”. RtL proposes the premise that “Landscape, as an umbrella concept of an integrated entity of physical environments, is imbued with meaning and comprises an underpinning component for ensuring wellbeing and dignity of communities and

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individuals”. The aim of the initiative is “to collectively define the concept of the right to landscape and to generate a body of knowledge that will support human rights” (CCLP, 2010b). The RtL initiative was launched in December 2008, on the 60th anniversary of the Universal Declaration of Human Rights, with an international workshop collaboratively organised with CCLP and held in Jesus College, Cambridge, UK. The multidisciplinary workshop began the discourse and ideas that are explored in this book. The volume begins with discussions on the idea of the right to landscape. The following chapters include a range of international case studies that explore the interface of landscape and human rights from their respective academic and/or professional position. By presenting case studies that illustrate how landscape and human rights depend on and affect each other we aim to yield discourse that includes different perspectives, needs and realities, and disseminate ideas on the right to landscape. While these essays are not by all means an exhaustive collection on this topic or a representative international model, they form the first step within our vision for ongoing dialogue on the right to landscape. We hope to see this framework supporting and facilitating interdisciplinary research by adding to and contributing towards the development of policies that will sustain human rights and secure the wellbeing of people and the landscapes they inhabit.

Landscape and new challenges to human rights Twenty-first century threats to landscape have been acknowledged in particular relation to climate change (Erhard, 2010). Environmental conditions linked to the phenomenon and their impact on species and human habitats through desertification, extreme weather events causing flooding, as well as rising sea levels inflicting disasters, are a topic of concern in scientific and political international discourse. An alarm about the degradation of the physical environment and the need to take measure for its protection began before this contemporary widespread occupation with climate change. During the past few decades several international organisations adopted various interpretations of landscape to describe their mission and philosophies. The International Association for Landscape Ecology (IALE) represents a scientific approach to landscape aiming “to develop landscape ecology as a scientific basis for analysis, planning and management of the landscapes of the world” (IALE, 1998). The United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage Committee’s definition, on the other hand, endeavours to overcome the perceived dichotomy between “cultural” and “natural” landscapes by “represent[ing] the combined work of nature and of man” (UNESCO, 2005: 83). Both the above examples address landscape as the physical result of process, whether natural or human driven. Underpinned by a quest for the wellbeing of all humans, one can argue that the above missions assert a universal right to a healthy environment and

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legacies of heritage. Heritage indeed includes intangible attributes but the foci of such bodies have been on protection of the actual tangible dimension of particular landscapes deemed culturally or historically significant. Within official international organisations, the value of the ordinary landscape as an everyday human habitat was not recognised until the turn of this century when the Council of Europe introduced the European Landscape Convention (ELC).2 The ELC represents a significant development perhaps best captured in its definition of “landscape” as “an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors” (ELC Article 1a). Positioning the role of human perception is the critical dimension here, as Kenneth Olwig argues in this volume. Moving the realm of landscape from a scientific objective arena to one that is in flux is an acknowledgement of the complicated nature of the concept and inevitably raises questions of potential ideological tensions and the imperative of an association between landscape protection and matters of social justice. This is no coincidence keeping in mind the time when the Council of Europe was established – post World War II and the organisation’s primary concerns with maintaining democracy and human rights. Human rights discourse has since widely diffused in particular within the last few decades of globalisation where these matters have reached the developing world (Cowan et al., 2001). Cowan et al. have also argued that the model for human rights has become hegemonic and saw a need to explore tensions between local and global conceptualisations of rights. They recognised the emergence of new fields of political struggle “such as reproductive rights animal rights and ecological rights” (Ibid.: 1). Today, a decade later, the accelerated pressure on limited resources and competition that is bound to inflict further conflict necessitates a new way of framing human rights. Underpinned by a moral imperative for aspiring to social justice in a challenging physical and political environment we explore how landscape as an overarching concept can form a new context to address such contemporary challenges.

Landscape as a framework for addressing human rights Launching the right to landscape discussion on human rights repositions an already extended interpretation of the term landscape in a new political arena. The word landscape has proven difficult to define (Williams, 1973; Meinig, 1976) and the variety of readings and uses of landscape attest to the elusive nature of this idiom (Makhzoumi and Pungetti, 1999). It has been generally agreed that the word bears different meanings to different people in different contexts. Nevertheless, in the past few decades the use of landscape as a theoretical instrument has become common in a multitude of disciplines and “has created the basis for a ‘reflexive’ conceptualization of landscape” (Olwig, 2000: 133). Landscape as the foci or as the envelope for theory and application

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can thus be found from cultural geography to ecology and in a diversity of humanistic fields such as anthropology, environmental, cultural and visual studies, history, tourism, archaeology, heritage and the design professions, especially landscape architecture. Paradoxically, the vagueness and difficulty on an agreed definition has not become a limitation but offers opportunities for innovative thinking by adopting the expansive, holistic framework of landscape. It is precisely this elasticity that makes landscape a potent term to explore new theories that relate to the value of landscape. By extending the spatial social arena to embrace political ethical ones, we explore ways in which landscape could become a positive tool to promote social justice. Social justice and landscape is not a new topic. Several scholars have examined landscape in that context. Denis Cosgrove (1984) introduced the social class perspective into the landscape discourse.3 James Duncan (1990) interpreted landscape as a cultural production correlated with political power. W.J.T. Mitchell (1994) too made the link between power and landscape. Don Mitchell (2000) advocated for critical geography through which he endeavours to stimulate action for cultural justice. At the same time Michael Jones’ work was concerned with landscape, law and justice (Peil and Jones, 2005) and he continues to explore their significance in terms of the European Landscape Convention (Jones and Stenseke, 2011). Kenneth Olwig (2002 and 2009) writes prolifically on landscape ideology, law and nationalism – topics that are directly related to the subject of landscape and human rights. The work of anthropologist Barbara Bender has been pivotal in instigating the discussion on landscape and social justice in non-Western cultures (Bender, 1995; Bender and Winer, 2001). Addressing the political dimension of landscape, her work has inspired anthropologists and archaeologists to expand beyond tangible, spatial dimensions and explore landscape as a repository of culture in a specific place and time (Tilley, 2006). Humans have shaped their surroundings, creating cultural landscapes, since the Neolithic revolution. Land has been cultivated to yield produce, woodlands cleared and managed whether for pastoral uses or fuel, environments formed for habitation and settings created for pleasure. Landscape therefore is simultaneously a product such as arable field, pasture land, settlement and garden, and, the act of production embedding intent, design and action. More so, it is a conceptualisation of both product and production. As the product of people – environment co-evolution, landscape is at once “a tangible product” of the act of humans’ shaping their surroundings and “intangible process”, making sense of the world through shared meanings and values (Makhzoumi, 2009b: 319). Part nature part culture, landscape straddles both realms. Landscapes, as such, have implied tangible resources, which constitute the foundation of the world we inhabit, be they air, water, a mountain or a river, and equally intangible human attachment and cultural valuation of these resources. Landscape is also, as W.J.T. Mitchell (1994) has argued, a “medium”. While it is a tangible context, a physical place and environment, it can at the same

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time be a representation of other entities, an intangible arena within which ideas are exchanged and powers enacted. Yet, we predominantly address landscape as polity (Olwig, 2002) rather than a pictorial representation.4 The underpinning of the idea of a right to landscape is our framing of landscape as more than a material object or objective environment. Landscape can be seen as a relationship between humans and their surroundings (Egoz, 2010). This relationship is shared by all human beings and as such can be understood as a universal existential bond that is part of the human experience (Tuan, 1974). The relationship is at once conceptual – a mental picture of the world that is culture and place specific, and physical – the action of shaping land and natural resources to fulfil human needs (Makhzoumi, 2010). Perceptions are rooted in culture as much as they are in natural setting, changing from one place to another, evolving over time. Implying the ongoing complex and evolving relationship between humans and their surroundings, landscape becomes a medium for action and a political arena. Landscape is thus the locus where multiple physical elements such as water, food or shelter unite with their meanings (Pungetti, 1999). Human rights, by definition are the rights stemming from a universal moral standard that transcends any national laws. Human rights discourse itself is not free of political tensions, in particular the problematic notion of universalism versus cultural relativism, which has drawn intellectual debate (see Bell et al., 2001; Cowan et al., 2001). Nevertheless, the establishment of the Universal Declaration of Human Rights (UDHR) in 1948 in the aftermath of World War II atrocities was an aspiration to guarantee both concrete needs for survival and the spiritual/emotional/psychological needs that are quintessential to the human experience. While landscape is place, nature and culture specific, the idea transcends nation-state boundaries and as such can be understood as a universal theoretical concept similar to the way in which human rights are perceived. By expanding on the concept of human rights in this context of landscape as the confluence of physical subsistence and psychological necessities we offer a new framework for addressing human rights. This original framework can hence generate alternative scenarios for constructing conflict-reduced approaches to landscape use and human wellbeing (see Makhzoumi, 2010). Linking both universalised concepts such as landscape and human rights is a point of departure for intellectual discussion, analysis and interpretation of situations where human rights are under threat. This dynamic and layered understanding of landscape is the first step towards the intellectual interface between landscape and human rights. Accordingly, we conceive of the right to landscape as the place where the expansive definition of landscape, with its tangible and intangible dimensions, overlaps with the tangible needs for survival and the intangible, spiritual, emotional and psychological needs that are quintessential to the human experience as defined by the UDHR. The overlap between landscape and human rights, with the tangibles and intangibles related to both is represented in the diagram in Figure 1.1.

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LANDSCAPE

/

TANGIBLES PHYSICAL ELEMENTS &RESOURCES

INTANGIBLES SOCIAL, ECONOMIC & CULTURAL VALUES

RIGHTS THAT SUPPORT EXISTENCE

RIGHTS THAT DIGNITY

HUMAN RIGHTS 1.1 Conceptual diagram: The overlap between landscape and human rights

Book structure A variety of interdisciplinary perspectives of looking at the idea are presented in this volume. Each chapter may stand alone as it represents a particular account and its authors’ reflections on the right to landscape. Although chapters are grouped into parts, there is no hierarchy in terms of the significance of the right to landscape in one context or the other. Indeed, the complexity of the concept means that themes addressed in most chapters would overlap. The grouping of the chapters into five parts is an attempt to provide structure for clarifying our argument for contesting landscape and human rights. Part I includes the general concepts that establish the new discourse. Part II aims to convey the diverse nature of the subject hence the four case studies in this section cover and address various seemingly disparate examples. In Part III the case studies revolve around indigenous people. One of the particularities of an indigenous population’s bond with its lived-in environment is that it exemplifies some of the core issues of our discussion. Part III therefore highlights the conceptual differences between a right to land as a tangible artefact that can be divided and traded gaining legal status, as opposed to landscape that embodies qualities that are difficult to quantify. Part IV presents examples that illustrate some of the dilemmas and contestation entrenched in landscape and claiming a right to landscape. The last section, Part V, covers the visionary aspects of the right to landscape concept revolving around the theme of recovery. A more detailed account and discussion of the ideas is offered below.

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part i: the right to Landscape: definitions and concepts Discussing the Universal Declaration of Human Rights in the face of resource scarcity is the way in which Stefanie Rixecker, political scientist and former Chair of the Governance Team of Amnesty International Aotearoa, New Zealand, engages with the question of the right to landscape. Rixecker provides a review of past structures that had recognised a relationship between the state of the environment and human rights. She notes that effects of climate change will afflict on wellbeing both in terms of threats to the basic physical components that underpin livelihood and the prospects of increased armed conflicts over scarce resources. Rixecker ascribes the failure of the 2009 Copenhagen summit to address an urgent moral obligation as well as the lack of resolutions to assume responsibility for the consequences of developed nations’ actions, to an economic world view within what she terms as “old-style power politics”. There is an inherit asymmetry of power that exists between the economic interests of large organisations and those individuals and communities who depend on natural resources for subsistence. The moral imperative that underpinned the UDHR has been to a certain extent lost within contemporary frameworks driven by economics. The redefining of specific rights in terms of a right to landscape has potential for reintroducing the global justice ethical dimension as well as a visionary, “out of the box” thinking that is necessary to tackle the complexity of such challenges. The right to landscape goes further than a right to the environment. This is illustrated through the example of the Pacific Islands of Tuvalo that are threatened by rising sea levels; she explains: “A ‘human right to the environment’ might only provide protection of Tuvaluans’ right to a healthy physical environment, whereas a ‘right to landscape’ would entitle them to secure a home that is more meaningful and resonates with their cultural references and meanings, thereby ruling out or seriously minimising their relocation to an arid, completely foreign environment”. The potential that lies in the richness of the concept of landscape is highlighted by Maguelonne Déjeant-Pons from the Council of Europe, the body responsible for the European Landscape Convention (ELC). She reflects on the conceptual framework of the convention and its development into rights, emphasising that a legal recognition of landscape implies responsibilities as well as rights. Rights specific to environmental protection are recognised human rights related to threats to human health and the basic right of existence. The right to landscape is however a “right in development” that combines articulations of existing environmental and cultural rights but also adds new features to be considered, such as the right of active public involvement in decisions that influence landscape. One of the points that Déjeant-Pons makes is that landscape is a multisensory entity and that the right to landscape ought to address “visual, auditory,

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olfactory, tactile, taste – and emotional perception which a population has of its environment”. Such suggestions demonstrate the possibilities embedded in the adoption of the right to landscape as an umbrella concept to contribute a more nuanced approach to human rights, one that can anchor intangible values in law. Kenneth Olwig is, however, cautious about an indiscriminate use of the term landscape. He warns against the pitfalls entrenched in the word itself and argues that it is imperative to define “the right rights to the right landscape”. Landscape in Western culture has traditionally been dominated by a visual interpretation of its qualities and that in turn influenced a reading of entitlement to ownership of space in an unequal manner. This version leads to contemporary tensions stemming from ideological convictions on private property rights and the supremacy of the economic market value of land. An interpretation of the land in landscape as shaped by people, on the other hand, implies customary use rights and opens the discussion on the right to landscape. It is this latter “right landscape” of polity and dwelling that Kenneth Olwig describes which Amy Strecker, a law researcher, relates to when she argues that the ELC suggests a conceptual link between landscape and human rights by its inclusion of all types of landscapes. Exploring the association of human rights with landscape Strecker’s axiom is that a right to landscape would have to be regarded a collective right. Like Stefanie Rixecker and Maguelonne Déjeant-Pons, Strecker reminds us that existing articles of, and related to, the Universal Declaration of Human Rights have already addressed some of the components that we could envision will be included in legislation on a right to landscape. Environmental rights and entitlements to economic, cultural and social freedoms are all implied in the idea of a right to landscape. The legal reality is, however, more complex and draws attention to the tensions between individuals’ rights and collective ones. The issues are further complicated when in line with Western liberal thought we think of human rights as a mechanism to protect the individual against unrestrained powers of the sovereign, i.e. the State, as represented by governments in contemporary realities. Public good however is in many instances represented by governments. Cases where landscape change or environmental protection measures have been brought to court arguing infringement on individuals’ property rights have highlighted this conflict. At the other end of the spectrum Strecker presents the example of the case of a motorway route in Ireland that runs through the landscape containing the Hill of Tara, Ireland’s most significant ancient cultural icon. Irish-born lawyer Vincent Salafia’s claim in court for protection of this landscape of cultural significance was not deemed worthy on the grounds that he has not been personally affected. Strecker suggests that The European Landscape Convention, however, is a promising legal framework to reintroduce ideas of justice and democracy in this context. Strecker embraces the German sociologist and philosopher

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Jürgen Habermas’s critic of legal liberalism and “its underlying need to support the dynamic of modern political economy”. Habermas calls for this to be replaced by, in Strecker’s words, “reinvestment in a kind of communitarianism of Aristotelian ‘public spaces’”. The European Landscape Convention, says Amy Strecker, offers the literal meaning to such abstract ideas. Nevertheless, for a right to landscape to be asserted and heard in court, human rights’ law would need to be expanded beyond the current underpinnings of the positioning of individual versus the State; the law would have to consider societal welfare and wellbeing that extend individuals’ cases of infringement on property rights. These four authors encapsulate the spirit of the discourse in this book. There is an underlying consensus that a right to landscape implies a need to depart from the prevailing economic paradigm and focus on human wellbeing related to equity and social justice. As Rixecker stresses, “The inherent dependence upon economics, premised upon the paradigm of perpetual growth, and set alongside a dependence upon old-style power politics of nation-state haggling amidst ‘super-power,’ ‘colonial’ and ‘imperial’ attitudes have fast become old tools for an old-world order”. Similarly, rather than seeing landscape production driven by economic forces as a given, Déjeant-Pons’ account of the ELC represents the humanistic approach that underpins this document. This is encapsulated in the emphasis on people’s perceptions and the importance of democratic processes for decision making regarding the lived-in landscapes. And finally, Kenneth Olwig spells it out clearly in his chapter by making the distinction between the definition of landscape as a detached visual entity or landscape as a place of living. The right to landscape will depend on the chosen definition, he says. The first shaping a discourse on individual property rights underpinned by Lockian philosophies and the latter – customary rights understood, writes Olwig “as use rights [that] are largely protected through social control in what has been termed the ‘moral economy’ (Thompson, 1993) – the word moral deriving from the Latin for custom, moralis”. Several of the case studies in the subsequent chapters reflect tensions between custom or landscape practices and legal interpretations. Part II portrays four different case studies which raise more questions and highlight the complexity and further nuances of the right to landscape concept. This section aims to establish the sense that there is room for discussion of the right to landscape in many contexts.

part ii: state, community and individual rights Michael Jones presents the case of Orkney and Shetland in the light of tensions between the property rights laws in those places and ideas of landscape as a collective asset. Jones, a historical geographer, describes the way in which historic traditions of Scandinavian udal law affect contemporary identities

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of these Scottish islands’ residents. Contested interpretations of history portray how adopted narratives can manipulate political and ideological control. Challenges to the monopoly of the state raise issues of human rights in terms of power relations. Jones comments that identity, at the end of the day, depends on “shared feelings of having a distinctive way of life and living in a distinctive landscape” rather than which land laws are embraced. This demonstrates that the right to self-determination in landscape is much broader than territorial issues. A more acute situation is described by Gearóid Ó Cuinn in his account of the Golan Heights territories that have been annexed by the State of Israel. While many residents were displaced when the territory was taken over from Syria by the Israeli military in 1967, the Arab residents who remained there are subject to injustices and blatant discrimination. Ó Cuinn uses the Golan as a way to explore existing human rights mechanisms that ought to protect the vulnerable population against expropriations of land that inflict on livelihood. He presents the story of the apple orchard landscape as a symbol of local resistance and an attempt to defend against land confiscations. In terms of human rights’ legislation, Ó Cuinn maintains that the idea of a right to landscape is yet to be developed in order to become an effective instrument that will guarantee a sustained relationship between people and their claimed spaces. At the same time, the example of the Golan, argues Ó Cuinn, demonstrates that “socio-economic rights are central to bringing landscape into the penumbra of international law”. Violation of human rights of a population that is under military occupation is a manifested expression of power imbalances. Our discussion on landscape and human rights nonetheless, extends the realms of the obvious political context where abuses are correlated with blatant oppression of weaker parties. The example comparing hunting landscapes in Portugal and Denmark offers another perspective to the discourse on landscape and human rights. It presents matters regarding inclusions and exclusions in one type of an evident landscape-related custom: hunting. The chapter is the result of interdisciplinary collaboration between anthropologist Júlia Carolino, countryside planner Jørgen Primdahl, landscape ecologist Teresa PintoCorreia, and landscape manager Mikkel Bojesen. This cooperation in itself is exemplary of the diversity of perspectives converging in the topic of landscape and rights. Hunting landscapes embody a rich narrative – they are places of ecological diversity and wildlife habitats, economic value and settings for social interactions and cultural expression. Legal rights to hunt suggest power relations that in turn shape the hunting landscape. The comparative analysis of Denmark and Portugal offers an understanding of the unquestionable impact of legislation on landscape in each of those settings. In a different context, landscape architect Susan Herrington writes about the impact of liability legislation on the designed play landscape infringing on children’s right to healthy development. Herrington looks at the progression of the idea of children’s rights, in particular a moral right to grow up healthy.

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Public playgrounds are environments that foster opportunities for healthy psychological and physical development of a child. Herrington reviews the record of children’s playgrounds in North America during a century, and expresses her concern for today’s children’s basic right to develop. A century after landscape architects introduced play equipment to public spaces, authorities are removing play equipment “deemed dangerous or too litigious” at an alarming scale. Prevailing cultures of parental anxiety in wealthy societies coupled with public agencies’ fear of litigation limit these opportunities in the landscape. Herrington’s challenging of the existing situation is a pertinent example of the type of contribution to children’s wellbeing that can be achieved via the framing of this phenomenon within a right to landscape discourse. The four chapters in this section highlight the diverse nature of the topic and the almost open-ended discussions that can take place. At the same time it also illustrates how the ethical question of the right to landscape, whether latent or blatant, is at the core of any attempt to understand landscape. In presenting this discussion, we argue that to consider landscape otherwise – as if it were an objective artefact – overlooks the proactive possibilities for social change that are embodied in this approach. One arena where landscape is more commonly accepted to possess intangible qualities is that of indigenous people. Part III focuses mainly on indigenous people’s intricate relationship with their environment.

part iii: Land, Landscape, identity In his discussion of the “right” right to landscape, Kenneth Olwig emphasised the significance of the word “land” in landscape according to the way it is interpreted – whether it is land as in “property” or as in a place shaped by people. The case studies in this part address the profound meaning that engagement with landscape embodies. This is apparent in particular in indigenous people’s relationship with their physical environment. The stories exemplify how landscape is read not only as a place moulded by the people but also as a concept that is quintessential to these people’s identity. Designer and landscape architect Gini Lee’s account of re-making Australian landscapes through working closely with the aboriginal community illustrates how the prevailing Western model of design is irrelevant in such a context. Lee maintains that to do justice to communities and effect change it is necessary for the designer to negotiate with the people themselves and become familiar with concepts foreign to outsiders. One key concept that is challenging to non-indigenous professionals is that of country. Country is an incredibly evocative and powerful term that can explain the Aborigine culture’s specific cosmology; it can perhaps be best described as the personification of landscape making it into a “real” relationship as we in the West would understand a bond between humans. To that extent appropriateness of landscape becomes

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a measure for wellbeing. Lee proposes that for the discourse of rights to induce change it “needs to simultaneously embrace both symbolic meaning and enduring action upon the mediating ground”; she then asserts that “it’s a lot to ask of the landscape”. We, however, have suggested that the elasticity of the term landscape contains exactly these possibilities. An acknowledgment of the centrality of landscape to wellbeing stresses the merit of exploring the right to landscape in the context of human rights. The need to think of landscape in a different light is reinforced in Jillian Walliss’ account of another Australian landscape, the iconic Uluru-Kata Tjuta National Park. The park, formerly known as Ayers Rock National Park, was handed back to the traditional owners, the Anangu people, in 1985. Walliss highlights the problematic nature of the result of the hand-back mirrored in a significant decline in the health and wellbeing of the people. She suggests that it is the conflation of the concepts of land and landscape by the policy makers that is the core of this predicament. The attempt to reconstruct the park into an Aboriginal cultural landscape for tourists reflects a simplistic and superficial understanding of landscape meaning. An interpretation centre that was believed would offer “meaningful cultural exchange” was based on Western models. Policy makers’ assumptions, however, ignored the notion that landscape meaning is too “thick” and multilayered to control; how people actually perceive landscape cannot be dictated from above. Walliss’ critique adds force to the idea that a right to landscape is not synonymous with land rights and it is necessary to think about landscape in deeper terms. Landscape architect Diane Menzies and law academic Jacinta Ruru equally argue that a right to land is not the same as a right to landscape. For Māori, the indigenous people of Aotearoa New Zealand, “landscape is who they are and what shapes their identity”. The values of the Tanga Te Whenua – the people of the land – are profoundly laced with landscape. The Treaty of Waitangi, a treaty signed between the British Crown and Māori chiefs in 1840, is the founding document of Aotearoa New Zealand as a nation. Disputes over interpretations of the colonised people’s rights as expressed in this document are ongoing, but the Treaty and a current Resource Management Act provide a platform for Māori to litigate concerns over landscape. Recognition of this special relationship Māori have with landscape exemplifies a degree of enlightenment; nonetheless there are still limitations. While acknowledgment of the foundational role that landscape plays in Māori culture has in some cases yielded favourable court rulings, domestic legislation does not define protection of Māori special relationships to landscape as absolute rights and Māori needs are not always prioritised. Ruru and Menzies therefore see a need for the development of an international framework for a right to landscape in order to provide more avenues for Māori to claim their rights. The major role that landscape plays for identity and “nativeness” is also the theme underpinning Shelley Egoz’s account of rootedness in the landscape. Through a comparison of the work of two artists, Israeli Yithak Danziger and Palestinian Hannah Farah-Kufr Bir’im, the essence of landscape as a personal

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and national identity-builder is portrayed. Landscape, in both cases, is the major motif that mutually represents collective ideologies and personal yearnings. While Danziger used landscape to root himself in an abstract ideal, for Farah, whose father was uprooted from Kufr Bi’rim during the 1948 war, re-rooting occurs through landscape as the foundation and solid base that allows him to grow in a new direction. The point to be made is that landscape is fundamental to human existence, identity, dignity and wellbeing at various levels, thus it is argued that a human right to landscape is not a peripheral proposition. The pervasiveness of landscape in the being of indigenous people in particular is what makes the indigenous perspective pivotal to the discussion on the right to landscape. While Kenneth Olwig argues in this volume that “the issue of the right rights to the right landscape is, however, much broader than the issue of native peoples, for in a certain sense we are all to some degree native peoples” the discourse on indigenous people and landscape forms nonetheless an introduction to the variety of contexts in which a right to landscape is relevant as well. It thus facilitates bringing this idea forward. Part IV offers further aspects of contestation embodied in how landscape is perceived and acted upon. These case studies remind us that a concept of the right to landscape is challenging and open to more debate.

part iv: competing Landscape narratives Landscape architect and urbanist Gareth Doherty tackles issues of exclusion in Bahrain where the Shiite majority is suppressed. Bahrain is a pronounced case that represents a similar prevailing situation throughout the Gulf States. Doherty offers his own experience through vignettes of three landscape types: coastal, road and parks which are implicitly “exclusive”. He then describes some of the counter practices by the suppressed Shiite majority to vent their frustrations and express their identity, albeit through the exercise of traditional practices: Graffiti and Ashura, the former a universal means for expression for the marginalised – whether economically because of ethnicity or religion and the latter a religious ritual. For Gareth Doherty the polyvocality of the Baharainian landscape exemplifies that landscape should not be seen as one monolithic entity; he thus challenges the proposition that one can apply a universal principle to any landscape. Nonetheless, we argue here that a universal principle, similar to the notion of human rights, should not be confused with a “one size fits all” approach. The polyvocality of landscape is no excuse for revoking the proposition of a universal principle. As Kenneth Olwig suggests in this volume: The right right to landscape is … the right to a diversity of landscapes, not just to the landscape of property’s uniform space, but also the use right to a common landscape shared by a variety of individuals and communities, human and natural.

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Landscape is a powerful medium that can evoke and retain memory. Landscape can also become a mode of resistance, a form of “a defiant garden” as Kenneth Helphand (2006) has articulated the idea of garden as the epitome of human resilience. Landscape architect Ziva Kolodney and architect Rachel Kallus view landscape production as a channel through which rights can be claimed. They portray the dialectic tension between the narratives of the “small” and the “big” landscape by telling the story of two gardens in the downtown of the city of Haifa, Israel. The “big” one is an official design of a public space and the “small” – a spontaneous design and individual construction of one person’s garden. Both landscapes embody in different ways the memory of place: the Haifa homes from which Palestinians were displaced as the consequence of war and the establishment of the State of Israel in 1948. In a design critique of the contemporary cityscape Kolodney and Kallus claim that it is the “small” landscape of the personal garden that possesses the “ability to challenge hegemonic power and stand against official efforts to shape memory [which] implies a fundamental right to it”. Whereas Kolodney and Kallus look at “the interplay between hegemonic and personal landscape production as a narrative of memory and amnesia”, dilemmas of a right to remember or forget are discussed by landscape architects Shannon Davis and Jacky Bowring in their account of memoryscapes. They focus on memorials to genocide in Cambodia and Rwanda. Such memoryscapes are crucial in representing one of humanity’s most repugnant atrocities and violation of human rights and the memorials’ mission is to act as warnings for “never again”. In both cases the sites of memorial contain shocking evidence that service political agendas and cater to the economics of Western tourism. At the same time, argue Davis and Bowring, “the rights of survivors may be best represented by very different landscape expression, one which does not see them constantly have to confront the tragic events of genocide, and perhaps one which even allows them to forget”. The omnipresence of such difficult dilemmas on the right to landscape put across the urgency of the discussion in particular within the context of contemporary paradigms of neoliberalism that tend to push away the weaker parties in favour of economic interests. Jala Makhzoumi of Lebanon describes the struggle to uphold public right under neoliberalism and a State that fails to protect the right of the Lebanese public, reduce inequalities and sustain collective rights to resources and landscape. Conceived by international real estate holdings to benefit investors with little regard to the human, cultural and natural context, neoliberal driven large-scale development threatens Lebanon’s scenic countryside. In her chapter Makhzoumi explores the potential role of landscape in discoursing public rights considering that the Arabic translation lacks the complexity and layered meaning of the English “landscape”. Accepting the validity of visual meaning of landscape as scenery is, she argues, nonetheless a potent medium for contesting public rights because scenery of mountains and sea are admired and valued by all and because they are integral to Lebanese national identity. While the author had

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herself in the past advocated that the prevailing meaning of landscape as scenery limits the professional and academic potential of “landscape”, here she discovers that in fact landscape scenery is politically empowering and more likely to spearhead the discourse of public rights in Lebanon. The potential of landscape to empower is further elaborated on in the final section of the book, where aspects of resilience, recovery and reconciliation set within the concept of landscape are presented.

part v: reconfigurations, recoveries and visions We conclude this volume with four examples that illustrate the centrality of landscape to human vitality and its potential to facilitate recovery. Anthropologist Munira Khayyat and architect Rabih Shibli describe the resilience of landscape and villagers in the war zone of Southern Lebanon. The nature of the 2006 war between the Israeli army and the Hizbulla guerrilla organisation can be described as “a war on the landscape”. In addition to over two decades of ongoing hostilities that had led to extreme abuses of the landscape such as soil erosion and desertification, to this war there was an extra dimension: the 3 million cluster bombs scattered over the landscape in the 24 hours before ceasefire, many of which remained unexploded. These concealed weapons are everywhere, turning the landscape into a place of death but at the same time, the landscape is also the locus of endurance: “a refuge and resource and a place of recurrent danger and death”. Despite the immense suffering and risk to their life the villagers demonstrate steadfastness by continuing to work the land. This tenacity is a statement of claiming their right to landscape. Khayyat and Shibli’s account has ramifications beyond offering descriptive information. Conceptualising the hardships of people in a war torn zone within the landscape context is significant as it holds opportunities to address reconstruction and recovery from a landscape perspective as has been shown by landscape architect Jala Makhzoumi in her design work (2010). The potential of this mindset to offer the fresh thinking that is required to instigate change and contribute to wellbeing in extreme situations is also illustrated through landscape architect’s Denise Hoffman-Brandt’s visionary project “Relief Organism: A Proposal for Sustaining Human Rights through Spatial Practices in Refugee Settlement”. Her reconfiguration of refugee encampment in Kenya is a pertinent model of the type of innovative thinking needed to address human rights within a landscape context. Hoffman-Brant analyses the current state of refugee camps in north-eastern Kenya that were “initiated as an emergency response yet often inhabited for indefinite time spans – [but] replace the violence of the home territory with dystopia”. She brings forward the concept of “Relief Organism” as an ecological planning alternative. Using the landscape and its ecology as infrastructure, HoffmanBrandt highlights the opportunity for capacity building among the residents.

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Her thinking is underpinned by a paradigm shift in the way in which relief and humanitarian aid are distributed: moving from a managerial perspective to context-specific design principles that generate an integrated system that supports subsistence, society and culture as a whole. More visionary thinking about what landscape has to offer to human wellbeing is presented by Swiss architect and urbanist Anna Grichting. Grichting highlights the role that grassroots action through landscape can play towards reconciliation. She discusses the right to landscape as embodied in peace parks, or more specifically the potential of Boundaryscapes in conflict areas to become the loci for sustainable reconciliation through ecological planning and grassroots’ environmental activism. Her case study is the Greenline Buffer Zone of Cyprus where she suggests that: “the Right to Landscape can be invoked to legally recognise this landscape as unique collective territory, as a symbolic landscape to commemorate the victims and reconcile past division”. Grassroots activism is also the tool envisioned in the concluding chapter of this volume. Gloria Pungetti and landscape architect Thomas Oles illustrate the potential of the “Right to Landscape” concept to support people’s wellbeing in another arena where human rights are threatened today: illegal actions against the environment. The chapter introduces the notion of “landscape crime”, as distinct from the more general “environmental crime”, to denote actions that not only damage natural systems, but also undermine more elusive, yet equally important, relationships between people and the places they inhabit. They offer examples of contemporary landscape crimes in a number of countries, and argue that the traditional knowledge embedded in cultural and sacred landscapes is one powerful way to mobilise local communities to combat such crimes through grassroots and political action.

Conclusion The contributors to this volume explore a wide range of topics that include urban, spiritual, legal, environmental, political, and art related themes. The authors draw on their respective disciplines, be it landscape architecture, landscape ecology, architecture, anthropology, history, geography, law and political science. They employ their academic and professional experience to offer alternative intellectual premises for their arguments. The range and diversity of contributions therefore reflect the versatility of the right to landscape concept as a medium for discoursing human rights. This is partly the result of the complementarity that exists between landscape and human rights. The discourses of both concepts entail similar issues of competing demands over land and natural resources and equally tensions and contestation over identities and polities. More so it is landscape’s “discursive elasticity that allows it to expand temporally, to include past, present and extend into the future; spatially, to embrace the continuity

the right to landscape: an introduction

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LANDSCAPE as CULTURAL REALM HEALTH & PHYSICAL

PSYCHOLOGICAL& SPIRITUALWELLBEING

SOCIAL, ECONOMIC & POLITICAL WELLBEING

clean air and water, food security, nature in cities, natural heritage

sacred sites, scenery, aesthetic fulfillment, sense of belonging and identity, cultural heritage

social justice, equal livelihood opportunities, freedom of expression

f

THE RIGHT TO LANDSCAPE individuals, communities, nations, the economicaIlydisadvantaged, the politically powerless, indigenous people, the marginalized

f

\

I

c

SAFEGAURDING NATURAL PROCESSES SECURING ECOSYSTEM HEALTH

\

SUSTAINABLE MANAGEMENT OF NATURAL RESOURCES

terrestrial, marine, riparian, eco-diversity

soil, water, air, biodiversity J

'

/

LANDSCAPE as NATURAL SETTING 1.2 Conceptual diagram: The comprehensive nature of the right to landscape

from local to region; and programmatically to include people and place” (Makhzoumi, 2010: 129). The potential of landscape in progressing human rights lies in its conceptualisation as the integration of tangible spatio-physical elements and resources and intangible socio-economic and cultural values. Landscape therefore contextualises the universal by anchoring the concept of human rights in spatial and socio-cultural specificities, thus serving as an inclusive framework for negotiating the rights of local communities and the marginalised, just as it serves as a medium for securing physical and spiritual wellbeing. The diagram in Figure 1.2 illustrates this relationship. All in all, this volume represents the seeds, some ideas, and just as many challenges. One such challenge is to identify assessment tools, guidelines and methodologies, which often lag behind as landscape researchers and professionals advance new concepts and unfold innovative interdisciplinary frontiers. Another challenge lies in avoiding professional territoriality by providing a platform for interdisciplinary collaboration. The universality of the right to landscape concept, however, is likely to serve as an umbrella equally for intellectual dialogue and practical resolutions to secure health, wellbeing and human dignity. The right to landscape, contesting landscape and human rights, we suggest, offers the new theoretical lens to confront the twenty-first-century challenges that impede on social justice.

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notes 1

For more on the editors’ key work upon which the right to landscape initiative has built, see: Egoz, 2008; Egoz and Merhav, 2009; Egoz and Williams, 2010; Chmeitilly et al., 2009; Jongman and Pungetti, 2004; Makhzoumi and Pungetti, 1999; Makhzoumi, 2009a, 2009b, 2010 and 2012; Pungetti et al., 2012.

2

An understanding of the significance of the ordinary landscape began with the humanistic school of cultural geography post World War II (thinkers such as J.B. Jackson, Yi-Fu Tuan and Donald Meinig). One can ascribe this scholarly body of work as the theoretical precursor for the ELC’s new approach to landscape.

3

Cosgrove viewed the landscape idea as a form of consciousness and presented this within a Marxist perspective that humans’ social being determines their consciousness.

4

Although, the perception of landscape as scenery, should not be overlooked as it may too have a role in the claim for communities’ rights to landscape as shown by Jala Makhzoumi in her chapter on neoliberal values in Lebanon in this volume.

References Bell, L.S., Nathan, A.J. and Peleg, I. (eds) (2001), Negotiating Culture and Human Rights (New York: Columbia University Press). Bender, B. (ed.) (1995), Landscape Politics and Perspectives (Oxford: Berg). Bender, B. and Winer, M. (eds) (2001), Contested Landscapes, Movement, Exile and Place (Oxford: Berg). CCLP, (2010a), Accessed 22 November 2010. CCLP, (2010b), Accessed 22 November 2010. Chmeitilly, H., Talhouk, S. and Makhzoumi, J. (2009), “Landscape Approach to the Conservation of Floral Diversity in Mediterranean Urban Coastal Landscapes: Beirut Seafront”. International Journal of Environmental Studies 66:2, 167–77. Cosgrove, D. (1984), Social Formation and Symbolic landscape (London: Croom Helm). Cowan J.K., Dembour M.B. and Wilson R.A. (eds) (2001), Culture and Rights; Anthropological Perspectives (Cambridge: Cambridge University Press). Duncan, J. (1990), The City as Text: The Politics of Landscape Interpretation in the Kandyan Kingdom (New York: Cambridge University Press). Egoz, S. (2008), “Deconstructing the Hegemony of Nationalist Narratives Through Landscape Architecture”, Landscape Research, 33:10, 29–50. Egoz, S. (2010), “The European Landscape Convention: A Close View from a Distance” Key Address in Proceedings of The Council of Europe (CoE) 8th International Workshop for the Implementation of the European Landscape Convention. European Spatial Planning and Landscape, No. 93, 25–31 (Strasbourg: Council of Europe Publishing).

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Egoz, S. and Merhav, R. (2009), “Ruins, Archaeology and the Other in the Landscape, the case of Zippori National Park”, Israel, JoLA 8, 56–69. Egoz, S. and Williams, T. (2010), “Co-existent Landscapes: Military Integration and Civilian Fragmentation” in Pearson, C., Coates, P. and Cole, P. (eds) Militarized Landscapes, from Gettysburg to Salisbury Plain (London: Continuum Books), 59–79. Erhard, M. (2010), Climate Change and Landscape in proceedings of The Council of Europe (CoE) 8th International Workshop for the implementation of the European Landscape Convention. European Spatial Planning and Landscape, No. 93, 35–7 (Strasbourg: Council of Europe Publishing). Helphand, K.I. (2006), Defiant Gardens, Making Gardens in Wartime (San Antonio: Trinity University Press). IALE, (1998), Bulletin 16, 1 Accessed 31 July 2010. Jones, M. and Stenseke, M. (eds) (2011), The European Landscape Convention: Challenges of Participation (Dordrecht: Springer). Jongman, R.H.G. and Pungetti, G. (eds) (2004), Ecological Networks and Greenways: Concept, Design, Implementation (Cambridge: Cambridge University Press). Makhzoumi, J. (2009a), “Landscape Architecture, Globalization and Post-War Recovery”, Landscape Review 13:1, 3–17. Makhzoumi, J. (2009b), “Unfolding Landscape in a Lebanese Village: Rural Heritage in a Globalizing World”, International Journal of Heritage Studies 15:4, 317–37. Makhzoumi, J. (2010), “Marginal Landscapes, Marginalized Rural Communities: Sustainable Postwar Recovery in Southern Lebanon” in H.A.l. Harithy (ed.) Lessons in Postwar Reconstruction: Case Studies from Lebanon in the Aftermath of the 2006 War (London: Routledge), 127–57. Makhzoumi, J. (2011), “Is Rural Heritage Relevant in an Urbanizing Mashreq? Exploring the Discourse of Landscape Heritage” in Lebanon in I. Maffi and R. Daher (eds) Practices of Patrimonialization in the Arab World: Positioning the Material Past in Contemporary Societies (London: I.B. Tauris) (in progress). Makhzoumi, J. and Pungetti, G. (1999), Ecological Landscape Design and Planning: The Mediterranean Context (London: E&FN Spon). Meinig, D. (ed.) (1976), The Interpretation of Ordinary Landscapes: Geographical Essays, (New York: Oxford University Press). Mitchell, D. (2000), Cultural Geography: A Critical Introduction (Oxford: Blackwell). Mitchell, W.J.T. (ed.) (1994), Landscape and Power (Chicago: The University of Chicago Press). Olwig, K.R. (2000), “Historical Aspects Multifunctionality in Landscapes: Opposing Views of Landscape” in Brant, J., Tress, B. and Tress, G. (eds) Multifunctional Landscapes: Interdisciplinary Approaches to Landscape Research and Management (Roskilde: Centre for Landscape Research), 133–46. Olwig, K.R. (2002), Landscape, Nature and the Body Politic: From Britain’s Renaissance to America’s New World (Madison: The University of Wisconsin Press). Olwig, K.R. (2007), “The Practice of Landscape ‘Conventions’ and the Just Landscape: The Case of the European Landscape Convention”, Landscape Research 32:5, 579–94.

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Olwig, K.R. and Mitchell, D. (eds) (2009), Justice, Power and the Political Landscape (Oxon: Routledge). Peil, T. and Jones, M. (eds) (2005), Landscape, Law and Justice (Oslo: Novus forlag/ Institute for Comparative Research in Human Culture). Pungetti, G., Oviedo, G. and Hooke, D. (eds) (2012), Sacred Species and Sites (Cambridge: Cambridge University Press) (in press). Pungetti, G. (1999), “A Holistic Approach to Landscape Research in the Mediterranean” in J. Makhzoumi and G. Pungetti Ecological Landscape Design and Planning: The Mediterranean Context (London: E&FN Spon), 34–43. Tilley, C. (2006), “Introduction: Identity, Place, Landscape and Heritage”, Journal of Material Culture 11, No. 1/2, 7–32. Tuan, Yi-Fu (1974), Topophilia: A Study of Environmental Perception, Attitudes and Values (New Jersey: Prentice Hall). UNESCO, (2005), Operational Guidelines for the Implementation of the World Heritage Convention. UNESCO World Heritage Centre. Paris, 83. Williams, R. (1973), The Country and the City (London: The Hogarth Press).

PART i

the right to Landscape: definitions and concepts

2 re-conceptualising human rights in the context of climate change: utilising the universal declaration of human rights as a platform for future rights Stefanie Rixecker

The destiny of human rights is in the hands of all our citizens in all our communities. (Eleanor Roosevelt, 1948)

introduction In December 2008 people around the world celebrated the 60th anniversary of the signing of the Universal Declaration of Human Rights (UDHR). It was a time to give thanks to those who had worked tirelessly to enshrine the words ‘… all human beings are born free and equal in dignity and human rights …’ and it was a time to remember those who had lost their lives before these words attained the status of an international code – a code to respect each human’s right to life and liberty. It was also a time to reflect on the successes since the signing of the UDHR – successes like the ratification of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The 60th anniversary was also a time to imagine a world where the Declaration and the full covenant of human rights treaties was upheld everywhere despite current conflicts and amidst a changing geopolitical and environmental world. It was also a time to act – to take action to secure a world that could celebrate a 100th anniversary that would stand as a testament to the resilience of human rights and the institutions that protect and secure these rights for all. The focused, determined conviction that spurred the drafting and international support for the UDHR in 1948 was borne from the horrors of World War Two and the atrocities of the Holocaust. These events and their many tragedies drove a generation to say ‘never again,’ so future generations could be free from such evil and know that human rights must be upheld. This history meant the initial emphasis of human rights defenders revolved around civil and political rights – rights such as the right to life, the right to freedom

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from torture, the right to freedom of association and the right to freedom of speech. Although raised at the same time as civil and political rights, the socalled second generation of human rights – or social, cultural and economic rights – took longer to attain international standing, and today remain a less well supported or enforced set of human rights. Nevertheless, the UDHR provided the international community with a framework for two types of rights: those deemed civil and political and those deemed economic, social and cultural. Together, they are regarded as indivisible and universal human rights. The UDHR and the two Covenants have become the platform from which subsequent human rights charters, treaties and other legal mechanisms have sprung. Given the historic moment from which it arose,1 it is not surprising that the UDHR neglected to highlight the environment as a critical part of human rights, although Article 25 does delineate the ‘right to a standard of living adequate for the health and well-being of himself [sic] and of his family.’ While the UDHR’s legacy may not have been to articulate a specific ‘right to a healthy and safe environment,’ it certainly provided a framework upon which such a right could be constructed. The potential of the UDHR as a platform for future rights creates a distinct opportunity to consider the indivisibility of human rights and how this concept relates to the material reality and indisputable survival needs of humankind in the twenty-first century. Further, the anniversary of the UDHR affords us with an opportunity to consider how the significance of collective relationships and responsibilities is evident and critical in the current context of environmental degradation, such as climate change. In doing so, it becomes necessary to understand and interrogate the relationships and connections between people and their physical environment. Such an analysis is not simply in terms of material utilisation, i.e., natural resource use, but the analysis must be in terms of how such relationships are embedded in a people’s way of life and expressed in and through their understanding and interpretation of their landscape. In essence, this view of rights allows us to imply that a special relationship exists between humans and their environment, a relationship which might be articulated as a ‘right to landscape,’ as promoted and debated by many authors within this volume. This chapter provides questions, suggestions and provocations about how such considerations are relevant in the context of climate change and a rapidly changing century.

human rights and climate change – setting the scene Since the early 1970s, the international community has worked on generating a formal mechanism, e.g., treaty or covenant that recognises ‘human rights and the environment.’ While there have been charters and treaties that recognise protection of the environment, species or habitats, it has proven much more difficult to generate support for a treaty that specifically creates a human right to the environment. Although there has been some success

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in defining specific environment-related human rights during the last three decades, e.g., the right to clean water and the right to housing, the increasing impacts of climate change significantly revitalised this debate, pushing it along at a considerable pace. In March 2008, the United Nations Human Rights Council (UNHRC) debated resolution 7/23 – a resolution on human rights and climate change – and the body encountered ‘strong objection to the mere notion that climate change and related environmental degradation have implications for the full enjoyment of human rights’ (Limon, 2009: 1). In March 2009, the United Nations Office of the High Commissioner for Human Rights (OHCHR) published a significant report on human rights and climate change (A/HRC/10/61) which then caused further debate in the UNHRC in June 2009 where resolution 10/4 on climate change and human rights was affirmed. This time, only 15 months since the June 2008 objections had been heard, there was a ‘broad acceptance of the existence of a relationship [between human rights and climate change], but also a clear convergence of views on the nature and character of the linkage’ (Limon, 2009: 1). This change in perception and approach was largely due to the groundswell of public and governmental support to ‘combat climate change’ in the buildup to the 15th Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) held in Copenhagen, Denmark in December 2009. In addition to science’s research and non-governmental organisations’ campaigning, there was also the increasing strength of moral suasion pursued by individuals and peoples alike. This moral view posited that governments needed to consider their moral obligations to their citizens, their relationships with other nations’ citizens and their obligation to future generations. This ethical lens meant that human rights and the environment became a more salient and pivotal aspect of the climate change debate. Nevertheless, conceptualising how to resolve a complex twenty-first century problem such as climate change, when one still uses twentieth century paradigms and tools, is insufficient. To a great extent, this is the reason for the unmitigated failure of the world’s nation-states at the Copenhagen ‘Climate Summit’ in December 2009. The inherent dependence upon economics, premised upon the paradigm of perpetual growth, and set alongside a dependence upon oldstyle power politics of nation-state haggling amidst ‘super-power,’ ‘colonial’ and ‘imperial’ attitudes have fast become old tools for an old-world order. Their efficacy was at its height in the twentieth century, and there is a decided void with regard to the necessary twenty-first century replacement tools and mechanisms.2 This ‘void’ has given rise to individuals and communities inventing new approaches, however, and there is a serious need for documenting current experiments and exemplars.3 As Sassen (2008: 2) articulates when she explains the unique and clever repositioning of national politics in a globalising world: … there is a second set of processes that does not necessarily scale at the global level as such, yet, is part of globalization. These processes take place deep inside territories and institutional domains that have largely been constructed in national terms in much of the world. What makes these processes part of

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globalization even though they are localized in national, indeed subnational, settings is that they are oriented towards global agendas and systems. They are multisited, transboundary networks and formations which include normative orders; they connect subnational or ‘national’ processes, institutions and actors, but not necessarily through the formal interstate system. Examples are crossborder networks of activists engaged in specific localized struggles with an explicit or implicit global agenda, for example, human rights and environmental organizations; … the use of international human rights instruments in national courts; and noncosmopolitan forms of global politics that remain deeply attached or focused on localized issues and struggles [emphasis in original].

Creativity and imagination need to be brought to bear on the role and function of sovereignty and the state, the notions of individual rights versus collective rights and the adjudication of inter-generational rights and responsibilities, just to name a few. Similarly, it is necessary to reconceptualise and redefine terms such as refugee, migrant and internally displaced person – all key terms in human rights discourse, yet none of which can be easily applied to an environmentally displaced person. Nations will be pressed to reconsider and reassess matters of equity, compensation and justice when people lose their homes and livelihoods due to climate-induced natural disasters and sea level rise. To do so, will require more robust discussions of place, identity and landscape in order to better understand what may be lost and what has already been lost. To achieve these things, it is essential to understand the realities of climate change, whether they relate to sea level rise creating ‘environmental refugees,’ resource scarcity leading to violent conflict or heightened poverty or increasingly powerful storms yielding human insecurity and necessitating increased, large-scale humanitarian responses. A significant attempt at doing so has been encapsulated in the literature commonly construed as attending to ‘human rights and the environment.’ This literature and concept provides various theoretical viewpoints – some individualistic and others collectivist – but all seeking to identify and provide a platform for protecting the inherent connection between humans and the environment. Doing so is complex and resides in a ‘slippery’ environment where definitions of ‘nature,’ ‘environment,’ ‘resources’ and ‘rights’ are all regarded as contentious and contestable. Nevertheless, it is essential to engage with these challenges in order to determine what is possible and in order to understand how different words and their representations and meanings can affect which mechanisms we utilise to protect the special relationships associated with a ‘right to landscape.’

human rights and the environment – emergent rights and a right to Landscape The concept of ‘human rights and the environment’ does not encompass a single type of right or a singular definition of the environment. The connection between human rights and the environment is generally due to some impact

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on humans resulting from a prior impact on the environment upon which they depend and with which they identify. In this sense, ‘environmental justice’ is regarded as a catchphrase for identifying the connections between environmental degradation and the social injustices that result as a consequence. The majority of literature that defines and uses environmental justice addresses the exploitation of nature, sometimes also referred to as natural resources, and such resource exploitation can be linked to power asymmetries. The literature shows that there is a distinct pattern where larger entities, such as governments or corporations, extract resources or (re)claim land for the purpose of economic gain, while those who live in, depend upon or identify with the environment are weaker with regard to their political and economic resource base. In short, the need for ‘environmental justice’ arises out of the contest for scarce resources, a contest defined by asymmetrical power relations. Sachs (2003, 2004) delineated a useful typology of conflicts associated with resources and subsistence rights.4 The six causes of conflict identified by Sachs (2003, 2004) include: extraction of raw minerals; alteration of ecosystems; reprogramming of nature; destabilisation due to climate change; pollution of urban living space; and changing prices of natural resources. In short, conflicts arise due to tensions between powerful brokers or external agents and less powerful locals, whether weaker nation-states or peoples. The intensity of these conflicts can result in violent conflict, but this level of human rights abuse is not necessary to claim a human rights violation. Instead, the degradation of the environment, often resulting in ecosystem degradation, reduces a people’s ability to attain their subsistence needs and this, then, is sufficient to claim a human rights violation. On the one hand, this appears clear and direct. On the other, however, the violation of such human rights has not, as yet, been fully recognised legally.5 Partly, this is because human rights are defined in law and premised upon individual rights, whereas most human rights associated with the environment depend upon collective rights and make reference to inter-generational rights – rights that are not readily identifiable in human rights legal discourse, but have been mooted as ‘emergent human rights’ (Hiskes, 2005). This ‘emergence’ of a human right is described as a factor of humankind’s history – as humankind changes the way it lives, new needs and rights result – they are emergent rights. In essence, this can be described as a pragmatic approach, but it is also an approach premised upon moral principles and an understanding that humans can and do adjust their legal, policy and cultural structures to protect what they hold most dear – universal moral principles that enable their survival. This notion of an ‘emergent right’ is significant in the context of the ‘Right to Landscape’ (RtL) as delineated by Egoz (2009) who argues that ‘Landscape differs from environment and is not synonymous with Nature. Therefore, landscape is not an object but a relationship … Landscape as a representation of a relationship cannot be analysed as an objective scientific artefact ….’. Further, Egoz (2009) articulates the challenge, and essence, of collective environmental rights as emergent rights when she argues that:

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The Right to Landscape is thus different than a right to landscapes; rights to landscape or landscape rights. It is also not about constructed ‘legal’ rights; it is rather the proposition that Landscape is an existential component of humans, and is something that cannot be taken away from them therefore relating the whole notion of landscape to human rights … Landscape is both specific and universal at the same time. It is an artefact shaped within a particular geography and culture but also a universal concept [emphasis in original].

These arguments arise from a changing world, a world of globalised interests and activities in which both the effects of globalising economies and globalising technologies generate effects that impact on human needs, from subsistence rights through to filial attachment to landscapes. The extent to which current worldviews, institutions and norms enable us, as global citizens, to engage with this depends upon both the (re)definition of our legal principles and mechanisms and, more importantly, upon our understanding that the complexity of twenty-first century problems requires a profoundly different perspective and approach. Climate change provides an exemplar.

climate change – an emergent property with human dimensions The relatively recent rallying cry regarding climate change and the need to protect humans and the environment has ‘emerged’ from the commingling of science, policy discourse and local communities bearing witness to a variety of contemporary environmental changes.6 These voices carry a strong conviction that these current impacts are but the harbinger of things to come. The debate regarding how the global community can reduce its impacts on climate change, usually reduced to discussions regarding carbon emissions and trading schemes, reached crescendo in December 2009 at the 15th Conference of the Parties for the UNFCCC. What became distinctly noticeable was the differences in discourse – those who argued for actions (or non-actions) based on individualist, economic principles and those who argued in favour of collective responsibilities and actions. The former primarily depended upon a singular approach – the reduction of carbon emissions based on economic or trading mechanisms – which was difficult to reconcile with the collective, trans-boundary realities of climate change’s effects. Here again it became apparent that humankind is currently living within a moment of transition – a time of emergent properties and emergent rights. ‘Emergent properties’ exist in living and non-living systems and have been explained theoretically in systems theory. With regard to living systems, the previous ‘paradigm’ was to identify each part of the environment, understanding its properties and regarding their connections as summative, i.e., adding all the parts together creates the whole. Since the 1950s, however, there was a shift towards seeing systems as ‘more than the sum of the parts.’ In essence, placing the pieces together created synergies which created a ‘better,’ ‘stronger’ or simply ‘different’ outcome than expected.7

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Using living systems as an example, one may think about certain parts of the biophysical environment, for example the forest, the river and the sunshine as separate entities; doing so, would regard these as parts that had specific functions, i.e., each item is reduced to its function. However, with the birth of ecology in Western science – and since creation for many indigenous peoples – the critical feature of biophysical understanding is the inter-relationships of the parts, relationships that often yield unexpected or unique attributes – what systems theory calls ‘emergent properties’ and some cultures call ‘magic’ or ‘power of the gods.’ Using the same example of the forest, the river and the sunshine, these ‘parts’ are essential entities in a system of interactions and relationships (e.g., filtering out carbon dioxide and generating oxygen) whereby an emergent property of ‘life’ is constituted. This ‘life’ is both the immediate life support for the trees, as well as the broader system itself, e.g., regulation of the climate system. In short, systems inherently have emergent properties, properties that cannot be reduced to any specific components or factors (Urry, 2003, 2008), but emerge out of the commingling and synergies between these factors. While the component parts, such as the trees, are resilient and can adapt to some change, e.g., logging, they can only do so within certain limits or thresholds. As each entity adapts, other parts of the system adjust and adapt – known as feedback – until a new ‘state of environment’ is attained. These ‘states,’ as I call them, do not necessarily enable the continued existence of every (or all) life on the planet. It is possible to push these resilient, yet delicate, systems to the point where the side effects will require loss of life or loss of livelihoods as we currently understand them. Climate change is such an ‘emergent property’ resulting from the complex dynamics and interactions of multiple change effects happening simultaneously and over time. The thresholds for multiple sub-systems have come under pressure and other sub-systems are adjusting or responding, creating feedback that further impacts on people’s lives and livelihoods.8 In turn, this then creates a social system response whereby emergent social systems can arise, such as emergent human rights to the environment. To better understand these connections, and the advent of emergent rights, it helps to see them through exemplars, as outlined in the next section.

Local peoples and climate change – Bearing the Burden and the responsibility There are a variety of local examples that highlight how environmental changes in one place yield effects in another, i.e., trans-boundary environmental problems such as acid rain, and how these then create tensions between people and governments (Bradbrook and Gardam, 2006; Coombes, 2007; Derman and Ferguson, 1995; Fabricius et al., 2007; Fisher, 2005; Gillespie, 1996; Global Witness, 2009; Kash, 2008). A particularly powerful example relates to

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sea level rise that results from a variety of effects associated with warming global temperatures, including effects such as the melting of ice sheets and glaciers. In addition, sea levels rise because ‘water expands when warmed, so sea level rises can be expected as a direct result of warming the oceans. Indeed, thermal expansion accounts for as much as half of the total rise in sea levels since measurements began’ (Morgan and McCrystal, 2009: 130). The 2007 Intergovernmental Panel on Climate Change (IPCC) report noted that small island states were especially vulnerable to climate change (IPCC, 2007: 64) and listed a series of current and future impacts, including but not limited to:

• sea-level rise and increased sea-water temperature accelerating beach • • • •

• •

erosion and degradation of natural coastal defences such as mangroves and coral reefs; some port facilities (Suva, Fiji and Apia, Samoa) would experience overtopping, damage to wharves and flooding of the hinterland; damage to or loss of airports and main roadways which are primarily located close to the coast; coastal erosion on Arctic islands has additional climate sensitivity through the warming of permafrost and massive ground ice; reduced average rainfall will reduce the size of the ‘freshwater lens,’ e.g., a 10 per cent reduction in average rainfall by 2050 is likely to correspond with a 20 per cent reduction in the freshwater lens on Tarawa Atoll, Kiribati; outbreaks of climate-sensitive diseases, e.g., malaria and dengue, will increase; significant impacts on tourism destinations will occur; some small island states (e.g., Barbados, Maldives, Seychelles and Tuvalu) already deploy mitigation strategies such as desalination plants to generate fresh water for locals and visitors.

This list provides a sense of some of the predicted effects of climate change. What it does not convey is the question of morality evident in such consequences. Who, for instance, is responsible for the planet’s warming, given that the IPCC (2007: 9) specifically stated that ‘a global assessment of data since 1970 has shown it is likely that anthropogenic warming has had a discernible influence on many physical and biological systems.’ Which generation(s) should be held to account? Which individual(s) from which country or countries are the most implicated or is this a burden that can be equally distributed? Does equal distribution also mean equitable distribution in such cases? And, who decides such responsibility and accountability, utilising which mechanisms or structures? In the case of Tuvalu, an island nation of 12,000 people across nine coral atolls, the majority of land is only 1 metre above sea level (Oxfam, 2009: 37). The IPCC report suggests that this island nation will be submerged in 50 years, yet our global community has neither the political will nor

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the required institutions to address this forecast impact. Despite Tuvalu and other small island states lobbying particularly hard at the recent Copenhagen Climate Summit, the twentieth century politics of power and self-interest prevailed. No climate agreement was reached, nor was there a sense that the key lesson had been learnt – new institutions and mechanisms are required. Given that certain populations have made a disproportionate contribution to carbon emissions, should these populations now be held responsible for sea level rise that might cause hardship or the complete loss of small islands and their unique cultures? If a small island state, such as Kiribati or Tuvalu in the South Pacific, loses its ability to generate a livelihood, for instance due to salt water inundation and salinisation of soils, who should be responsible – past generations or current generations of carbon emitters? In a worst case scenario, which state or states will be host to the displaced peoples when they can no longer generate a livelihood – a subsistence – from their homeland?9 Given that no international law recognises the loss of a nation to environmental effects, such as the submersion of a small island state, then under which legal mechanism can these people claim a right to a territory? A home? Or their culture? Will new institutions be created to arbitrate when a people’s subsistence rights are lost entirely? And, how will one people’s rights be balanced against other people’s rights, for instance citizens already living in New Zealand or Australia, but who may be required to allow displaced peoples to migrate to their safer shores. Do such displaced peoples have a ‘right to landscape’ and if so, which landscape – the one that is submerged or the cultural remembrance and possible reconstitution in another landscape? For instance, in the case of Tuvaluans, their ‘landscape’ may include their day-to-day and spiritual connections with the sea. How would this be recognised or reconstructed if they become displaced and are relocated to another country that is arid or land-locked? A ‘human right to the environment’ might only provide protection of Tuvaluans’ right to a healthy physical environment, whereas a ‘right to landscape’ would entitle them to secure a home that is more meaningful and resonates with their cultural references and meanings, thereby ruling out or seriously minimising their relocation to an arid, completely foreign environment. Similar to the small island states, the Polar Regions and their inhabitants were also identified as a particularly vulnerable group. The IPCC (2007) documented a similar list of effects for this region, and particularly noted that ‘for Arctic human communities, it is virtually certain that there will be both negative and positive impacts, particularly through cryospheric components, on infrastructure and traditional indigenous ways of life’ (62).10 Indeed, it has also been noted by Trainor et al. (2007: 629) that ‘the case of arctic climate impacts raises an additional important issue of intranational equity with respect to climate change, upon which very little work has been done’ [emphasis in original]. Sheila Watt-Cloutier, Chair of the Inuit

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Circumpolar Council (ICC), has been putting forward the Inuit people’s view on climate change for two decades. In 2004, she represented the interests of over 155,000 Inuit – the peoples who lived in Alaska, northern Canada, Greenland and Chukotka, Russia for millennia – when she testified at the US Senate Committee on Commerce, Science and Transportation hearings on climate change. Her testimony poignantly identified the intimate and intricate connection between people and their landscape. Specifically, Watt-Cloutier (2006: 97, 99) testified that: For generations uncounted, Inuit have closely observed the environment and have accurately predicted weather enabling us to travel safely on the sea ice to hunt seals, whales, walrus, and polar bears. We don’t hunt for sport or recreation; we hunt to put food on the table. Most of the world goes to the supermarket; Inuit go to the sea ice. Eating what we hunt is at the very core of what it means to be Inuit. When we can no longer hunt on the sea ice and eat what we hunt, we will no longer exist as a people [emphasis added]. What can Inuit do to convince the world to take long-term action, which will have to go far beyond Kyoto? How do we convince the major emitters, such as the United States, of the risks we face in the Arctic? … We believe one route is to look at the international human rights regime that is in place to protect peoples from cultural extinction – the very situation facing Inuit … Inuit have lived in the Arctic for millennia. Our culture and economy reflect the land and all that it gives. We are connected to the land. Our understanding of who we are – our age-old knowledge and wisdom – comes from the land. It is our struggle to thrive in the harshest environment that has given us the answers we need to survive in the modern world. That outlook, a respectful human outlook that sees connections to everything, should inform the debate on climate change.

conclusion – transitions and transformations Sheila Watt-Cloutier’s testimony is poignant and foreshadows the articulation of a ‘right to landscape’ as presented by Egoz (2009). Essentially, the ‘right to landscape’ brings this situation into stark focus by asking pressing and timely questions – questions of landscape architects, planners, policymakers and each of us as national and global citizens. What human rights do people affected by climate change have, and given the scenarios presented to date, what rights and mechanisms are needed to contend with the impacts of such changes – human impacts such as migration, conflicts over resource scarcity and changing landscapes. Although the 2009 Climate Summit came far short of generating a global agreement, its 2007 predecessor in Bali did generate a statement of principle, asserting that: As a global environmental hazard, climate change affects the enjoyment of human rights as a whole and therefore, it is at the core of the indivisible, interdependent and interrelated nature of each and all human rights as initially emphasized in the Universal Declaration of Human Rights (OHCHR, 2007).

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Clearly, the Universal Declaration of Human Rights and the subsequent human rights treaties and agreements provide a useful platform for generating responses to the human dimensions of environmental degradation and climate change. The reality, though, is that this platform is necessary but not sufficient. We must rise to the challenge of the twenty-first century and construct new mechanisms that can incorporate the complexities of climate change and its human dimensions in a manner that retains the strengths of the twentieth century mechanisms, yet generates creative, appropriate and effective twenty-first century mechanisms that can engender a healthy planet with healthy people. For this reason, it becomes necessary to consider, investigate and interrogate the meanings of ‘nature,’ ‘environment,’ ‘resource,’ ‘rights’ and now ‘landscape’ in the context of human rights. The authors in this book do just that – providing a platform upon which the relevance of the Universal Declaration of Human Rights and its evolution of rights can be simultaneously recognised and challenged.

notes 1

For an informative discussion on the significance of history and the UDHR that also attends to the theoretical aspects of the universalism of human rights, see Ignatieff (2001).

2

The tools of the twentieth century are many, and they can be purposeful and relevant in the twenty-first century. Nevertheless, the premises upon which they are built, their epistemology and ontology, are commonly narrow and embedded in an Anglo-European context. For a theoretical analysis regarding epistemology and its impacts on policy analysis and design, see Rixecker (1994).

3

For an example of how a community challenged traditional definitions of health, safety and epidemiological science in the name of ‘environmental justice,’ see Corburn (2005).

4

‘Nature’ is not only a source of materials used by corporations to generate products that yield profits, but nature is also a source of livelihood for people who rely upon nature’s bounty, such as foods and materials derived from forests or fresh water in rivers and streams. Such livelihoods are not about creating an income, but about basic survival – the necessities of life. These are described as ‘subsistence rights’ and rely directly on the existence of and access to natural resources.

5

A useful summary and discussion of current human rights mechanisms and their relation to climate change effects can be found in a report by the Office of the United Nations High Commissioner for Human Rights (OHCHR, 2009).

6

Discussions about climate change have been underway for at least four decades with ‘global warming’ being used to describe similar effects. There are too many references to cite with regard to climate change, but some useful sources include Dow and Downing (2006), Flannery (2005), Pearce (2006), Stern (2006) and Walker and Steffen (1997).

7

The development of systems theory can be traced back to the 1950s and became prominent in the 1970s in disciplines such as engineering, ecology and political

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science. These concepts developed into various types of system theory, e.g. soft versus hard systems, and such debates influenced the evolution of systems thinking and its applications to understanding and conceptualising the environment. Some useful references include Checkland (1981, 1985, 1988, 1993, 2003), Churchman (1971), Clayton and Radcliffe (1996), Flood and Romm (1996), Holwell (2000), Ison et al. (1997), Lister (1998), Midgley (2003), Mingers (2000, 2003), Nodoushani (1999), O’Connor and McDermott (1997), Skinner et al. (1999), It is from this and other work that concepts such as emergent properties, resilience and adaptation became prominent; ultimately, these have driven a critical literature in ecology and environmental management related to managing environmental issues, including climate change and its impacts. For example, see Folke et al. (1998), Holling (1973, 1978, 2001) Jiggins and Roling (2000), Lessard (1998). 8

For an analysis of the commingling of natural and human systems in relation to climate change, see Liu et al. (2007).

9

For further information on forced migration, see Black (2001), Boana et al. (2008) and Castles (2002).

10

Further research on the impacts of climate change in the Arctic and on Inuit peoples can be found in Berkes and Jolly (2001), Chance and Andreeva (1995) and Ford and Furgal (2009).

References Berkes, F. and Jolly, D. (2001), ‘Adapting to Climate Change: Social-ecological Resilience in a Canadian Western Arctic Community,’ Conservation Ecology 5:2, 18–32. Black, R. (2001), ‘Environmental Refugees: Myth or Reality?’ Working Paper No. 34, United Nations High Commission on Refugees. Boano, C. et al. (2008), Environmentally Displaced People: Understanding the Linkages between Environmental Change, Livelihoods and Forced Migration, Forced Migration Policy Briefing 1 (Oxford: Oxford University Refugee Studies Centre). Bradbook, A.J. and Gardam, J.G. (2006), ‘Placing access to energy services within a human rights framework,’ Human Rights Quarterly 28:2, 389–415. Castles, S. (2002), ‘Environmental Change and Forced Migration: Making Sense of the Debate,’ Working Paper No. 70, United Nations High Commission on Refugees. Chance, N.A. and Andreeva, E.N. (1995), ‘Sustainability, Equity, and Natural Resource Development in Northwest Siberia and Arctic Alaska,’ Human Ecology 23:2, 217–40. Checkland, P. (1981), Systems Thinking, Systems Practice (New York: John Wiley & Sons). Checkland, P. (1985), ‘From Optimizing to Learning: A Development of Systems Thinking for the 1990s,’ Journal of the Operation Research Society 36:9, 757–67. Checkland, P. (1988), ‘Soft Systems Methodology: An Overview,’ Journal of Applied Systems Analysis 15, 35–37. Checkland, P. (1993, revised), Systems Thinking, Systems Practice (New York: John Wiley & Sons). Checkland, P. (2003), ‘From Optimizing to Learning: A Development of Systems

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Thinking for the 1990s’ in Midgley, G. (ed.), Second Order Cybernetics, Systemic Therapy and Soft Systems Thinking (London: Sage Publications). Churchman, C.W. (1971), The Design of Inquiring Systems: Basic Concepts of Systems and Organization (New York: Basic Books Publishers). Clayton, A.M.H. and Radcliffe, N.J. (1996), Sustainability: A Systems Approach (London: Earthscan). Coombes, B. (2007), ‘Defending Community?: Indigeneity, Self-determination and Institutional Ambivalence in the Restoration of Lake Whakaki,’ Geoforum 38, 60–72. Corburn, J. (2005), Street Science: Community Knowledge and Environmental Health Justice (Cambridge, MA: MIT Press). Derman, B. and Ferguson, A. (1995), ‘Human Rights, Environment, and Development: The Dispossession of Fishing Communities on Lake Malawi,’ Human Ecology: An Interdisciplinary Journal 23:2, 125–42. Dow, K. and Downing, T.E. (2006), The Atlas of Climate Change: Mapping the World’s Greatest Challenge (London: Earthscan). Egoz, S. (2009), ‘The European Landscape Convention: A Close View from a Distance,’ Keynote address to the 8th meeting of the Council of Europe of the Workshops for the Implementation of the European Landscape Convention – Landscape and driving forces, Swedish University of Agricultural Sciences, Malmo, Sweden. Fabricius, C., Folke, C., Cundill, G. and Schultz, L. (2007), ‘Powerless Spectators, Coping Actors, and Adaptive Co-managers: A Synthesis of the Role of Communities in Ecosystem Management,’ Ecology and Society 12:1, 29–43. Fisher, C.T. (2005), ‘Demographic and Landscape Change in the Lake Patzcuaro Basin, Mexico: Abandoning the Garden,’ American Anthropologist 107:1, 87–95. Flannery, T. (2005), The Weather Makers: How Man is Changing the Climate and What it Means for Life on Earth (New York: Grove Press). Flood, R.L. and Romm, N.R.A. (1996), Critical Systems Thinking: Current Research and Practice (New York: Plenum Press). Folke, C., Berkes, F. and Colding, J. (1998), ‘Ecological Practices and Social Mechanisms for Building Resilience and Sustainability,’ in Berkes, F. and Folke, C. (eds), Linking Social and Ecological Systems: Management Practices and Social Mechanisms for Building Resilience (Cambridge: Cambridge University Press). Ford, J.D. and Furgal, C. (2009), ‘Foreword to the Special Issue: Climate Change Impacts, Adaptation and Vulnerability in the Arctic,’ Polar Research 28, 1–9. Gillespie, R. (1996), ‘Ecocide, Industrial Chemical Contamination, and the Corporate Profit Imperative: The Case of Bougainville,’ Social Justice 23:4, 109–24. Global Witness, (2009), Country for Sale: How Cambodia’s Elite has Captured the Country’s Extractive Industries, a report by Global Witness. Hiskes, R.P. (2005), ‘The Right to a Green Future: Human Rights, Environmentalism, and Intergenerational Justice,’ Human Rights Quarterly 27:4, 1346–65. Holling, C.S. (1973), ‘Resilience and Stability of Ecological Systems,’ Annual Review of Ecology and Systematics 4, 1–23. Holling, C.S. (1978), Adaptive Environmental Assessment and Management (Chichester: John Wiley & Sons).

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Holling, C.S. (2001), ‘Understanding the Complexity of Economic, Ecological and Social Systems,’ Ecosystems 4, 390–405. Holwell, S. (2000), ‘Softy Systems Methodology: Other Voices,’ Systemic Practice and Action Research 13:6, 773–95. Ignatieff, M. (2001), Human Rights as Politics and Idolatry (Princeton: Princeton University Press). IPCC, (2007), Climate Change 2007: Impacts, Adaptation and Vulnerability – Summary for Policymakers: A report of Working group II of the Intergovernmental Panel on Climate Change. Part of the Working Group II contribution to the fourth assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press). Ison, R.L., Maiteny, P.T. and Carr, S. (1997), ‘Systems Methodologies for Sustainable Natural Resources Research and Development,’ Agricultural Systems 55:2, 257–72. Jiggins, J. and Roling, N. (2000), ‘Adaptive Management: Potential and Limitations for ecological governance,’ International Journal of Agricultural Resources, Governance and Ecology 1:1, 28–42. Kash, J.P. (2008), ‘Enemies to Allies: The Role of Policy-Design Adaptation in Facilitating a Farmer-Environmentalist Alliance,’ The Policy Studies Journal 36:1, 39–60. Lessard, G. (1998), ‘An Adaptive Approach to Planning and Decision Making,’ Landscape and Urban Planning 40, 81–7. Limon, M. (2009), ‘Linking Human Rights and the Environment: Key Issues Arising from Human Rights Council Resolution 10/4 and the June 2009 Council Debate on the Relationship between Human Rights and Climate Change.’ High Level Expert Meeting on the New Future of Human Rights and Environment: Moving the Global Agenda Forward. Nairobi, Kenya. 30 November to 1 December. Lister, N.E. (1998), ‘A Systems Approach to Biodiversity Conservation Planning,’ Environmental Monitoring and Assessment 49:2–3, 123–55. Liu, J. et al. (2007), ‘Coupled Human and Natural Systems,’ Ambio 36:8, 639–49. Mander, J. and Tauli-Corpuz, V. (eds) (2006), Paradigm Wars: Indigenous Peoples’ Resistance to Globalization (San Francisco: Sierra Club Books and the International Forum on Globalization). Midgley, G. (2003), ‘Science as Systemic Intervention: Some Implications of Systems Thinking and Complexity for the Philosophy of Science,’ Systemic Practice and Action Research 16:2, 77–97. Mingers, J. (2000), ‘An Idea Ahead of its Time: The History and Development of Soft Systems Methodology,’ Systemic Practice and Action Research 13:6, 733–53. Mingers, J. (2003), ‘Towards an Appropriate Social Theory for Applied Systems Thinking: Critical Theory and Soft Systems Methodology,’ in Midgley, G. (ed.), Critical Systems Thinking and Systemic Perspectives on Ethics, Power and Pluralism (London: Sage Publications). Morgan, G. and McCrystal, J. (2009), Poles Apart: Beyond the Shouting, Who’s Right About Cimate Change? (Auckland: Random House). Nodoushani, O. (1999), ‘Systems Thinking and Management Epistemology,’ Systemic Practice and Action Research 12:6, 557–71.

re-conceptualising human rights in the context of climate change

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O’Connor, J. and McDermott, I. (1997), The Art of Systems Thinking: Essential Skills for Creativity and Problem Solving (London: Thorsons). OHCHR, (2007), ‘The Human Rights Impact of Climate Change,’ Office of the High commissioner for Human Rights . OHCHR, (2009), Annual Report of the United Nations High Commissioner for Human Rights and reports of the office of the High Commissioner and the Secretary General. Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights. (United Nations, A/HRC/10/61, 15 January). Oxfam (2009), ‘Suffering the Science: Climate Change, People and Poverty’ 130: Oxfam Briefing Paper. Pearce, F. (2006), The Last Generation: How Nature Will Take Her Revenge for Climate Change (London: Transworld Publishers). Rixecker, S.S. (1994), ‘Expanding the Discursive Context of Policy Design: A Matter of Feminist Standpoint Epistemology,’ Policy Sciences 27, 119–42. Sachs, W. (2003), Environment and Human Rights (Wuppertal: Wuppertal Institute for Climate, Environment and Energy). Sachs, W. (2004), ‘Environment and Human Rights,’ Development 47:1, 42–9. Sassen, S. (2008, revised edition), Territory-Authority-Rights: From Medieval to Global Assemblages (Princeton: Princeton University Press). Skinner, B.J., Porter, S.C, and Botkin, D.B. (1999), The Blue Planet: An Introduction to Earth System Science (New York: John Wiley & Sons). Stern, N. (2006), The Stern Review on the Economics of Climate Change (Cambridge: Cambridge University Press). Trainor, S.F., Chapin, F.S., Huntington, H.P., Nathcher, D.C., and Kofinas, G. (2007), ‘Arctic Climate Impacts: Environmental Injustice in Canada and the United States,’ Local Environment 12:6, 627–43. Urry, J. (2003), Global Complexity (Cambridge: Polity Press). Urry, J. (2008), ‘Climate Change, Travel and Complex Futures,’ The British Journal of Sociology 59:2, 261–79. Walker, S. and Steffen, W. (1997), ‘An Overview of the Implications of Global Change for Natural and Managed Terrestrial Ecosystems,’ Conservation Ecology 1:2, 2. Watt-Cloutier, S. (2006), ‘Climate Change in the Arctic,’ in Mander, J. and TauliCorpuz, V. (eds).

3 the right rights to the right Landscape? Kenneth R. Olwig

introduction A discussion on the right to landscape necessitates a clarification of what kind of rights one means, and what sort of landscape. The European Landscape Convention, which addresses democratic access to landscapes, defines “landscape” as “an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors” (Europe, 2000: I.1.a). “Perception” is at the heart of this definition and will shape the debate on rights. When the land in landscape is perceived to have the qualities of a property defined in space, discourse will tend to revolve around individual property rights, territorial rights, ownership rights and economic value. If, on the other hand, the land in landscape, is perceived to be a place, shaped as an area for use by individuals and communities, then discourse can be directed towards customary use rights, which are fundamental to common law (Olwig, 2002: 3–24). Custom is foundational to legal rights in Britain and most of the many places colonized by the British, and it is part of the legal and moral value systems of most other societies. Custom nevertheless leads a subaltern existence because it is rooted in unwritten practice and use rather than in property ownership, and because it is confused with “tradition,” which generally does not carry legal rights (Thompson, 1993; Olwig, 2002: 3–42). Practice based customary rights are governed by a different logic (use) than the rationality (geometric/spatial) of property rights, and this makes it difficult to comprehend both conceptions of right within the same discourse. The result is that customary rights will tend to be elided from discussions of the rights to landscape because they are more complex than the demarcation of territorial ownership, and because the word “right” itself belongs to the discourse of space and geometry (e.g. a right angle).1 These differing notions of right, and of landscape, have nevertheless existed side by side right up to the present day and work, in practice, to govern the use of the same areas,

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even though there can be tension between them (Olwig, 2005). If the meaning of the land in landscape is differentiated to encompass the difference between land as spatial property and land as place for individual and community use; and if rights of ownership are distinguished from rights of use, then it becomes possible to discuss, and implement, a differentiated concept of the right to landscape that can liberate it from the straightjacket of property and territorial rights. When discussing the right to landscape it is thus important to discuss the right rights in relation to the right landscape.

The Right Landscape? The charming landscape which I saw this morning, is indubitably made up of some twenty or thirty farms. Miller owns this field, Locke that, and Manning the woodland beyond. But none of them owns the landscape. There is a property in the horizon which no man has but he whose eye can integrate all the parts, that is, the poet. This is the best part of these men’s farms, yet to this their warrantydeeds give no title (Emerson, 1991 (orig. 1836): 7).

The idea that the landscape is something that transcends individual property rights can be as charming as the landscape gazed upon here by Ralph Waldo Emerson (1803–1882). This distinguished American philosopher not only set the agenda for much modern thinking about landscape and nature, he also, as an insightful philosopher, managed to capture the essence of what has become a dominant perception of landscape in Western society (see Figures 3.1 and 3.1a). Nevertheless, there is a danger this charming passage can charm the mind into a spellbound concern with what, in many contexts, are the wrong rights to the wrong landscape. Emerson’s landscape is defined in terms of property rights, not use rights, and this is problematic. It may be an appealing idea that even though “Miller owns this field, Locke that, and Manning the woodland beyond,” none of them nevertheless owns the landscape scene viewed by the eye. It is mistaken, however, to assume that because none of them owns the landscape, others do not lay claims of ownership. If we read on, we see that this landscape possesses a “property” that can only be captured by that person “whose eye can integrate all the parts.” Thus, if a person or group does not have the power of this integrative and possessive eye, this landscape does not belong to them. Since this line of argumentation might seem inordinately abstract and philosophical, it is useful to examine what this can mean in practice. An example can be taken from one of the landscapes quintessentially identified with the spirit of Emerson’s notion of landscape and nature – that of Yosemite Valley, California, the progenitor of the world’s first national parks.2 For the landscape architect Frederick Law Olmsted (1822–1903), who drew up an early park plan for Yosemite, an appreciation of landscape scenery was a mark of civilization: “The power of scenery to affect men is in a large way proportionate to the degree of their civilization and to the degree in which

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3.1 This mural called “America’s Progress” shows how Emerson’s vision of landscape is closely linked to a vision of American manifest destiny. The mural (ca. 1934), by Josep Maria Sert, is in the reception of the G.E. Building, Rockefeller Center, New York City

3.1a Ralph Waldo Emerson bending over (below Abraham Lincoln – wearing a stove pipe hat) handing a large beam to a workman who is working to literally build America

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their taste has been cultivated” (Olmsted, 1990 (orig. 1865): 503).3 In Olmsted’s opinion, “The fighting Indian met with on the frontier is the antitype and the natural enemy of the civilized man …. According to the civilized standard he is a lazy, ravenous, brutal, filthy, improvident, lying, treacherous, bloodthirsty scoundrel” (Olmsted, 1990 (orig. 1865): 685), but, perhaps worst of all, the “Indian” had no eye for landscape scenery. The power of Yosemite’s landscape scenery was, to Olmsted’s mind, lost upon the Yosemite “Indians.” He therefore had few qualms about evicting them from the valley to make room for American lovers of natural scenery, because “among a thousand savages there will be a much smaller number who will show the least sign of being so affected [by landscape scenery] than among a thousand persons taken from a civilized community” (Olmsted, 1990 (orig. 1865): 685). There is clearly something more to landscape scenery than meets the eye.

Landscape properties It is interesting that one of the stakeholders in Emerson’s text is named “Locke,” given that John Locke (1632–1704), the philosopher, had considerable influence upon Anglo-American and European discourse concerning property and “natural” human rights. In Emerson’s quote, the property belonging to “Locke” is specifically “real property,” or real estate. Landscape, perceived as a “property in the horizon,” is thereby understood in terms of a context in which property is identified, from the outset, as property in land, so the land in this landscape is landed property. At the time of John Locke and Emerson, real estate was key to defining political rights and social identity, so that one’s social estate, and the affiliated notions of proprietorship and propriety were identified with one’s landed estate. Social properties thus adhered to, or belonged to, the land itself – a phenomenon which later gained importance in the context of nationalism (Olwig, 2002: 99–124). For Emerson propriety over the landscape accrues, however, not to the individual landed property owner because his lands are only a part of the landscape. Ownership rather accrues to those who can share the poet’s ability to integrate these parts into an image of a larger scenic whole, “a property in the horizon.” At this time, the overriding imaginative property on the American artistic horizon was the nature of the American continent, which was seen to embody the social and subjective identity of the American nation – a diversity of formerly colonial territories redefined as united states within the defining continental space of America (see Figure 3.2). The landscape vision of the poet and artist played a major role in defining that identity (Novak, 1980; Boime, 1991; Daniels, 1993). Anyone sharing this imaginative perception of the American landscape thus became more than an individual owner of a staked out property. Such a person became an American with a stake in this vision of the American landscape. Those who did not have a share in this landscape, like the Yosemite, did not

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3.2 Emanuel Leutze’ 1861 painting, “Westward the Course of Empire Makes Its Way,” is found in the Capitol Building in Washington, DC. It shows the “manifest destiny” of America as white settlers carve a nation out of an apparently empty wilderness. This photo is of item #1931.6.1 at the Smithsonian American Art Museum

share this right, and this arguably continues to be the situation for many other indigenous peoples around the world. For Olmsted, the American people, as represented by the American nation state, had a greater right to landscape than the “Indians.” It is problematic, however, to allow the right to landscape to be founded upon the discourse of property rights as grounded in the nation state. In the case of Yosemite Valley, for example, the real question was not the right to landscape of the American nation vs. that of the Indian nation, but the right to the landscape of the American nation state vs. the right to the landscape of the Yosemite. These indigenous people would have little sense of national identity, governance by a state or private property and, hence, little basis upon which to assert the rights of national citizens to the landscape of the Yosemite Valley, either as individuals, or as those with a share in the view. This would thus have been the wrong landscape to claim on the basis of the wrong right. It would have been, in other words, a mistake to claim a right to landscape understood in terms of its spatial properties as scenery and as landed property. A case could be made, however, that the Yosemite people had a defensible customary use right to the Yosemite Valley landscape under established Anglo-American law, if landscape is understood as a place shaped by use. This would have been the right right to the right landscape, and it is arguable that if they continued to use the landscape according to their custom they would have done much to prevent the deterioration, through overgrowth, of the open quality of the meadowlands that Olmsted valued. This right, however, was opposed by

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Olmsted because he wished to see the valley emptied of settlers and preserved as a park for the Americans who were capable of appreciating the landscape as a scenic whole. The Yosemite were evicted with the use of military force, but this does not mean that might makes right. The response today of many native peoples is to adopt the discursive framework of nation-statehood and property in arguing for their right to landscape, but this can involve arguing for the wrong right to the wrong landscape if these peoples do not, in fact, share a working nation state, a clearly defined sense of private property as guaranteed by that state, or a sense of overarching national identity.4 In such cases, it might make more sense to argue for common law use rights, and to resist (e.g. in the courts or through civil disobedience or passive resistance) the assertion of might to make right what is otherwise wrong. The issue of the right rights to the right landscape is, however, much broader than the issue of native peoples, for in a certain sense we are all to some degree native peoples.

the global cosmic Landscape “Whole” The underlying implication of Emerson’s text is that the person who possesses an integrative eye can unite the perceived properties of landscape into a totality, which presumably pre-exists the perceiver, but which is nevertheless not perceptible to all. But what is the nature of this whole? The answer to this question is something of a tautology since the whole, as will be seen, is very much in the eye of the beholder – literally. Property in land is commonly staked out by driving stakes into the earth, but the property itself is measured according to the absolute space of a grid that is staked, in turn, to the graticule of the globe. The property thus becomes locatable within an abstract, uniform, global space, and measurable according to its geometry. The area of land thus measured says little about its use value, but it is nevertheless itself a useful measure when it comes to apportioning the exchange value of the land as property. The landscape of property, and the properties of the rights that adhere to it, are thus fundamentally tied to absolute, global space. Writing of landscape defined as scenery, W.J.T. Mitchell brings out the integral integrating role of space: The vernacular expression [“look at the view”] suggests that the invitation to look at landscape is an invitation not to look at any specific thing, but to ignore all particulars in favor of an appreciation of a total gestalt, a vista or scene that may be dominated by some specific feature, but is not simply reducible to that feature … The invitation to look at a view is thus a suggestion to look at nothing – or more precisely, to look at looking itself – to engage in a kind of conscious apperception of space … (Mitchell, 2002: vii–viii).

Mitchell captures the essence of Emerson’s landscape, in which the integrating factor is absolute space as perceived by the eye.5

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Scholars have shown how the space of the scenic, perspectival representation of landscape derives from the uniform space of the map within which locations are plotted, much as plots of property are staked out in the space of a cadastral map (Cosgrove, 1985; Edgerton, 1987). This map, in turn, is a flattened and scaled version of the uniform, isotropic space of the globe. Landscape, when represented this way, basically involves the shifting of the angle of perspective from the vertical, top down point of view of the map, to a more horizontal prospect as surveyed from a single point, and hence with the single eye.6 Many contemporary studies of landscape character typically make use of scenic representations to map people’s viewpoint of the landscape. Such studies are as tautological as the Emersonian landscape whole because the landscape is predefined by its spatial framework, which literally predefines the landscape totality. The “owner” of this landscape, however, is not so much the poet but the specialist who can best integrate all the spatial properties of this landscape into a convincing whole, be it in terms of the social or natural sciences. Such analyses are, furthermore, often linked, in turn, to economic studies of people’s willingness to pay for given landscape “values” and thereby compensate the “stakeholders” who own the warranty-deeds to the property which is part of a given, desirable landscape whole. Miller, Manning and Locke might thereby now be able to receive compensation for the inclusion of their properties within an area protected as landscape.

the use right to Landscape Lockian property rights are so-called “natural” rights, because they theoretically apply, like the geometric laws of gravity, in the same way everywhere and at all times. Natural rights differ, therefore, from customary rights that are specific to the customs of different places and times. Olmsted thus argued essentially for the natural universal right of the American people to beautiful natural scenery, as exemplified at Yosemite (see Figure 3.3), whereas the Yosemite people arguably had a customary use right to the specific place, the Yosemite valley, where they had used and shaped the land for generations. Custom should not be confused with tradition because custom, unlike tradition, is foundational to much law, particularly in the case of law that is historically founded upon English practice.7 Custom is essentially rooted in bodily practice involving all the senses, rather than in eternal, “natural” principles enshrined in property as a spatial and scenic phenomenon. Customary law differs from natural law, and tradition, because it changes through time. A classic introduction to a customary legal principle is the phrase “from time out of mind,” which both expresses the principle that custom is based on long standing practice, but which also tells that when custom is forgotten, it no longer applies, or it may be applied in a modified form which better suits changing circumstances (Olwig, 2002: 51–2). In many places, often a commons, woodland or beach, there have long existed

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3.3 Yosemite Valley, with its steep walls, is an ideal place to achieve dramatic, picturesque, scenic views of nature. This photo was taken from a spot where the visitor to Yosemite National Park is able to park and take a snap-shot (like this one taken by the author) of a wilderness scene like the famous pictures of Yosemite captured by the photographer Ansel Adams

differentiated use rights to the land. Certain people might have the right to graze the land, whereas others might have the right to forest it, and yet others might have title to the land as property, but not have use rights to that land. Furthermore, a more generalized group, those who travel through the land, might have the right to, for example, follow a certain path, pick berries and mushrooms or collect wood for a fire. Today, however, the use of the landscape has often changed. There may still be herders and foresters, but most of the travelers now whiz through the landscape in a motorcar. Nevertheless, the descendants of those who used to walk through the landscape may have retained family customs regarding the practice of picking and cooking/ eating berries and mushrooms, or walking certain paths through the fields and forests. The result is that many modern countries have preserved, in one form or another, the general customary use right of people to walk through such landscapes, often on customary paths, for recreational purposes. This customary right is therefore both time out of mind and contemporary. In Britain these rights are often, though by no means only, preserved in the National Parks, where people in communities holding customary grazing rights share the use of their land with recreational walkers treading ancient footpaths. This contrasts with the American national parks, which are usually

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emptied of their inhabitants (and not just the Native Americans) (K.F. Olwig, 1985; Olwig, 2002: 176–212). Because custom is rooted in practice, it is connected to the way we use the landscape. Customary rights to landscape thus also tend to be use rights. Custom, therefore, is also focused upon what we may do, rather than what we may not do (e.g. trespass). Whereas property rights in land demarcate a uniform area of space toward which uniform sovereign possession is devolved, use rights govern differentiated forms of use. Property rights are also primarily protected by the state, whereas use rights are largely protected through social control in what has been termed the “moral economy” (Thompson, 1993) – the word moral deriving from the Latin for custom, moralis. A sense of community and place thereby forms around the mutual sharing through time of a complex set of resources. Whereas the properties of a landscape characterized by rights of property tend to be divided into spatially defined specialized zones of woodland or field owned by, for example, Miller, Manning and Locke, the landscape of custom is characterized by a complex of diverse environments, as often is found on a pastoral commons, a woodland or a beach. In the former case it requires a poet or painter to integrate the parts, whereas in the latter the pastoral environment is integrated through common use that makes the environment a living symbol of “grass roots” community, which in turn might inspire a poet or painter. Landscape in this sense is the place shared by communities, and it is also capable of transformation to suit contemporary conditions (Olwig, 2002). This is why the right to the landscape understood as a place of common use is the right to the right landscape in many contexts where the right to landscape as private property falls short.

conclusion: the right rights to the right Landscape? Whereas landscape in the sense used by Emerson is an infinite transcendent space, which can be parceled into properties to which equally transcendent rights of ownership accrue, the landscape that derives from human practice is the place of a habitus, the rights which devolve to those who use it in a way judged to be moral by the communities who share it. This landscape does not possess properties in and of itself; its character is rather the expression of the habitude of the users of the area in question. The land in this landscape is the place shaped by those who use it and give it its -scape, in the etymologically primary sense in which -scape indicates the shape, condition or character of something (Olwig, 2002: 18–19).8 A poet, artist or landscape architect, of course, might want to capture and represent the character, or -scape, of this palatial landscape in a poem, artwork or landscape design, but this does not require the artist to frame and integrate that landscape primarily in terms of scenic spatial properties.9 Landscape, when conceptualized in Emersonian spatial terms, transcends individual rights of property in land, elevating this idea of land to an abstraction and giving it holistic (and even holy) properties comprehensible

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only to the poet, the painter or the patriot. This scenic landscape draws the eye away from the particular to a global, cosmic spatial horizon. When the land in landscape is conceptualized, on the other hand, as place or arena, attention is turned to the realm of being, doing and use, and, in more abstract terms, a symbol, of the communities who share the use of this land. There are many circumstances where it is relevant to consider property rights when considering the right to landscape. There are certain kinds of spaces, such as private yards and grain fields under cultivation, where the owner of a property, both customarily and under statutory law, has the right to exclude trespassers. There can also be cases where it might be reasonable to compensate landowners for their loss of their rights to such land. But this does not mean that property rights should be treated as a transcendent, uniform and universal landscape space. There are many forms of land that are amenable to both property rights and differentiated use rights ranging from a shepherd’s right to graze to a rambler’s right to walk. Land does not have fixed uniform properties, neither in space nor time. There are thus places where there is a written or unwritten right to tread upon land that has been harvested, but not when it is under cultivation. The diversity of the land’s aspect, whether in aesthetic terms or in biological terms, is necessarily a reflection of the diversity of its use. The right right to landscape is thus, I would conclude, the right to a diversity of landscapes, not just to the landscape of property’s uniform space, but also the use right to a common landscape shared by a variety of individuals and communities, human and natural. The right right to landscape can thus be the right of ownership to the landscape of property, when this is appropriate, but the right right can also be the use right to a landscape which is common to communities of users, and regulated by a time out of mind sense of justice and moral habitude. In the first sense the right to landscape is perceived in terms of the straight lines and right angles of landscape as a space, the properties of which are owned by someone, be it a land owner or poet. This is a landscape that is largely perceived with the eye in perspectival space. The substantive landscape of customary use rights, on the other hand, is perceived by “doing” the landscape (Olwig 2008) by, for example, walking through it, or picking its berries, and hence it is perceived with all the senses and with both eyes.

acknowledgement I would like to thank Anna Jacobsson for her valuable help with the illustrations.

notes 1

The word “right” is etymologically related to the Latin rectus “ruled,” from an Indo-European root denoting movement in a straight line and is related to other Latin derived legal concepts such as justice and the rule of law (Olwig, 2002).

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2

I have discussed the connection between the perception of landscape scenic value, ideas of development and civilization, Olmsted and the Yosemite example in Olwig 2002.

3

The idea that an individual’s or a people’s state of development and civilization can be measured according to their ability to perceive and value the properties of landscape scenery, and hence landscape values more generally, goes back at least to the eighteenth century. This supposed lack of appreciation of landscape has been used up until modern times to justify the appropriation of landscapes by peoples who have seen themselves as having a greater appreciation of landscape and a higher level of civilization or education and, hence, a greater right to the landscape than those who dwell there (Barrell, 1987; Gröning and WolschkeBulmahn, 1987; Mitchell, 1994; Olwig, 2001).

4

For relevant discussions of the Sámi right to landscape, see Jones and Schanche (2004).

5

Samuel Johnson’s dictionary defines this meaning of landscape as: “2) A picture, representing an extent of space, with the various objects in it” (Johnson, 1755 [1968]: landscape).

6

It is a single eye because the lines of perspective focus on a single focal point, which cannot be shared by two eyes, and this is the reason artists close one eye and use their thumb to focus perspectival space, and surveyors use a telescope, when surveying the land. Natural visual perception creates depth perception through movement and the use of two eyes (Olwig, 2008).

7

As Eric Hobsbawm explains: “The object and characteristic of ‘traditions,’ including invented ones, is invariance … . ‘Custom’ cannot afford to be invariant, because even in ‘traditional’ societies life is not so. Customary or common law still shows this combination of flexibility in substance and formal adherence to precedent. The difference between ‘tradition’ and ‘custom’ in our sense is indeed well illustrated here. ‘Custom’ is what judges do; ‘tradition’ (in this instance invented tradition) is the wig, robe and other formal paraphernalia and ritualized practices surrounding their substantial action (Hobsbawm, 1983: 2–3).

8

The word “land” in this context thus does not mean the earthen surface of the globe, as with Emerson’s use of landscape, but rather a place, region or area of country, or the representation of such a place, as in Johnson’s first definition: “1) A region; the prospect of a country” (Johnson, 1755 [1968]: landscape).

9

In which case the suffix -scape is re-defined to so that it comes to denote a specific kind of scene, e.g. a waterscape, townscape or moonscape.

References Barrell, J. (1987), “The Public Prospect and the Private View: The Politics of Taste in Eighteenth-Century Britain” in J.C. Eade (ed.), Projecting Landscape (Australia: Humanities Research Centre Australian National University, 15–35). Boime, A. (1991), The Magisterial Gaze (Washington: Smithsonian Institution Press). Cosgrove, D. (1985), “Prospect, Perspective and the Evolution of theLandscape Idea” Transactions of the Institute of British Geographers N.S. 1, 45–62.

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Daniels, S. (1993), Fields of Vision: Landscape Imagery and National Identity in England and the United States (Cambridge: Polity Press). Edgerton, S. (1987), From Mental Matrix to Mappa mundi to Christian Empire: The Heritage of Ptolemaic Cartography in the Renaissance. Art and Cartography: Six Historical Essays in D. Woodward (ed.) (Chicago: University of Chicago Press), 10–50. Emerson, R.W. (1991 [orig. 1836]), “Nature” in Nature/Walking, J. Elder (ed.) (Boston: Beacon Press, 1–67). Europe, Council of (2000), European Landscape Convention, Florence. CETS No. 176. (Strasbourg: Council of Europe). Gröning, G. and J. Wolschke-Bulmahn (1987), ‘Politics, Planning and the Protection of Nature: Political Abuse of Early Ecological Ideas in Germany, 1933–45’ Planning Perspectives 2, 127–48. Hobsbawm, E. (1983), ‘Introduction’ in The Invention of Tradition, T. Ranger and E. Hobsbawm (eds) (Cambridge: Cambridge University Press), 1–14. Johnson, S. (1755 [1968]), A Dictionary of the English Language (London: W. Strahan). Jones, M. and A. Schanche (eds) (2004), Landscape, Law and Customary Rights, Diedut 3. (Kautokeino: Nordic Saami Institute). Mitchell, W.J.T. (1994), “Imperial Landscape” in Landscape and Power, W.J.T. Mitchell (ed.) (Chicago: The University of Chicago Press), 5–34. Mitchell, W.J.T. (2002), “Preface to the Second Edition of Landscape and Power: Space, Place, and Landscape” in Landscape and Power, W.J.T. Mitchell (ed.) (Chicago: The University of Chicago Press), vii–xii. Novak, B. (1980), Nature and Culture: American Landscape and Painting: 1825–1875 (New York: Oxford University Press). Olmsted, F.L. (1990 [orig. 1865]), “Preliminary Report upon the Yosemite and Big Tree Grove’ in The Papers of Frederick Law Olmsted: The California Frontier 1863–1865, V.P. Ranney et al. (eds) (Baltimore: The Johns Hopkins University Press), vol. 5, 488–516. Olwig, K.F. (1985), Cultural Adaptation and Resistance on St. John: Three Centuries of AfroCaribbean Life (Gainesville: University of Florida Press). Olwig, K.R. (2001), ‘Landscape as a Contested Topos of Place, Community and Self’ in Textures of Place: Exploring Humanist Geographies, P.C. Adams, S. Hoelscher and K.E. Till (eds) (Minneapolis: The University of Minnesota Press), 95–117. Olwig, K.R. (2002), Landscape, Nature and the Body Politic (Madison: University of Wisconsin Press). Olwig, K.R. (2005), ‘The Landscape of “Customary” Law versus that of “Natural” Law’ Landscape Research 30:3, 299–320. Olwig, K.R. (2008), ‘Performing on the Landscape vs. Doing Landscape: Perambulatory Practice, Sight and the Sense of Belonging’ in Ways of Walking: Ethnography and Practice on Foot, T. Ingold and J.L. Vergunst (eds) (Aldershot: Ashgate), 81–91. Thompson, E.P. (1993), Customs in Common (London: Penguin).

4 the european Landscape convention: from concepts to rights Maguelonne Déjeant-Pons

The landscape … is a key element of individual and social well-being and its protection, management and planning entail rights and responsibilities for everyone. (Preamble to the European Landscape Convention)

The European Landscape Convention was opened for signature in Florence, Italy, on 20 October 2000 and came into force on 1 March 2004, with the aim of promoting European landscape protection, management and planning and organising European co-operation in this area. The Convention is the first international treaty to be exclusively concerned with all aspects of European landscape.1 The Convention states that each Party undertakes “to recognise landscapes in law as an essential component of people’s surroundings, an expression of the diversity of their shared cultural and natural heritage, and a foundation of their identity”2. The legal recognition of landscape implies rights and responsibilities on the part of all institutions and citizens of Europe towards their physical surroundings. The landscape in which they live is the result of many change-producing actions resulting from the activity of various stakeholders in territorial processes in highly varied ways and on differing scales of time and space. Such activities may be the outcome of action by public authorities in establishing a large-scale infrastructure or of individual action in a restricted space. For the purposes of the Convention, “landscape” means an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors.3 This concept differs from the one that may be found in certain documents, which sees in landscape an “asset” (heritage concept of landscape) and assesses it (as “cultural”, “natural” etc. landscape) by considering it as a part of physical space. It expresses the desire to confront, head-on and in a comprehensive way, the theme of the quality of

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the surroundings where people live; this is recognised as a precondition for individual and social well-being (understood in the physical, physiological, psychological and intellectual sense) and for sustainable development, as well as a resource conducive to economic activity.4 The sensory – visual, auditory, olfactory, tactile, taste – and emotional perception which a population has of its environment and recognition of the latter’s diversity and special historical and cultural features are essential for the respect and safeguarding of the identity of the population itself and for individual enrichment and that of society as a whole. The notion of “sustainable development” is understood as fully integrating the environmental, cultural, social and economic dimensions in an overall and integrated fashion; that is, by applying them to the entire territory. Attention is focused on the territory as a whole, without distinguishing between the urban, peri-urban, rural and natural parts, or between parts that may be regarded as outstanding, everyday or degraded; it is not limited to cultural, artificial and natural elements: the landscape forms a whole whose constituent parts are considered simultaneously in their interrelations.

***

The right to landscape could be developed on the basis of and as an extension of the right to the environment or of the right to cultural heritage, even if it must be considered with its own specificity. The right to the environment is becoming one of the major human rights, since the most fundamental human right of all, the right of existence, is under threat. In any hierarchy of human rights, if such a thing were possible, it would have to be placed among the most important of all. For many years now scientific experts have been pointing out that it is not just the quality of life but life itself that is in danger. The growing number of dangerous substances allowed to find their way into water, the soil and the atmosphere is leading to an increase of pollution. Together with overexploitation of resources and destruction of landscapes, these factors are transforming what were once nuisances into serious dangers for the human race and the whole biosphere. These risks extend not just beyond State frontiers but also beyond the frontiers of the Earth.5 “The human race has a special responsibility towards the environment, and even a solemn responsibility to protect and improve [it] for present and future generations”, states the Stockolm Declaration adopted on 16 June 1972 by the United Nations Conference on the Human Environment. Humans must, as the World Conservation Strategy adopted in 1980 points out, maintain essential ecological processes and lifesupporting systems, preserve genetic diversity and ensure the long-term use of species and ecosystems. However, they can only do this if their rights in certain areas are recognised. The first principle of the Stockolm Declaration on the environment proclaims: “Man has the fundamental right to freedom, equality and adequate

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conditions of life, in an environment of a quality that permits a life of dignity and wellbeing.” Twenty years after, the Rio Declaration on Environment and Development recognised that environmental issues are best handled with the participation of all citizens, at the relevant level. The question of “human rights and the environment” was also discussed at the United Nations Summit of Johannesburg on sustainable development in 2002. Although systems to monitor the application of human rights which rely on reports are useful, they simply cannot be compared with the right of individual petition approach, which is the only one that enables private persons, whether individuals or corporate bodies, to secure a full hearing of their case. Relying on any environmental rights which might be recognised, individuals should mainly aim at prevention, in order to ensure that States comply with national and international regulations. Of the two European legal instruments for the protection of human rights prepared within the Council of Europe, neither the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (or the “European Convention on Human Rights”) – with its protocols – nor the 1961 European Social Charter refer to the concepts of environment and landscape. Environmental protection can however be taken into consideration by the Court of Human Rights indirectly through the limitation of certain guaranteed rights or through a “knock-on effect” – that is, when damage to the environment simultaneously infringes a guaranteed right. The provisions limiting exercise of the rights set out in Articles 8 (respect for private and family life), 9 (freedom of thought and conscience), 10 (freedom of expression) and 11 (freedom of assembly and association) of the European Convention on Human Rights are worded in similar terms. They give States the possibility of limiting or interfering in the right, where the law so prescribes, using measures necessary in a democratic society for the protection of certain values, including health. The first article of Protocol No. 1 to the Convention, which sets forth the right of property, permits a State to “enforce such laws as it deems necessary to control the use of property in accordance with the general interest …”. Thus, the right of property does not stand in the way of the adoption of legislation designed to protect the environment. The European Court of Human Rights confirmed this interpretation in the Fredin judgment of February 1991 by declaring in a preliminary observation that “in today’s society the protection of the environment is an increasingly important consideration”. The European Social Charter also states that the rights and principles it sets forth must not be subject to any restrictions or limitations not specified therein “except such as are prescribed by law and are necessary in a democratic society for the protection of … public health”. The environment can be protected indirectly when environmental damage can be shown to constitute a violation of a right guaranteed by the Convention, its protocols or the European Social Charter (life, private and family life, property, health etc.). Article 11 of the European Social Charter deals with the “right to protection of health” and

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requires Contracting Parties, with a view to ensuring the effective exercise of that right, to take appropriate measures designed inter alia “to remove as far as possible the causes of ill health”. Damage to the environment likely to affect the health of persons protected by the Charter is therefore taken into consideration. The bodies responsible for monitoring implementation of the Charter have confirmed this interpretation. The Committee of Independent Experts, set up to scrutinise the biennial reports by the Contracting Parties, has declared on several occasions that its supervisory role required it to consider environmental protection problems. The right to cultural heritage is from now on recognised by the Framework Convention on the Value of Cultural Heritage for Society adopted on 27 October 2005 in Faro, Portugal.6 The Convention is intended to underpin existing Council of Europe instruments on more specific aspects of cultural heritage. It does not concern the legal and administrative heritage protection mechanisms already set out in the previous Granada and Valletta Conventions on archaeological and architectural heritages, but focuses instead on the ethics and principles of the use and development of heritage in a Europe affected by globalisation. Cultural heritages are considered as resources from which to develop dialogue, democratic debate and openness between cultures. Article 4 of the Convention on “Rights and responsibilities relating to cultural heritage” states that the Parties recognise that everyone, alone or collectively, has the right to benefit from the cultural heritage and to contribute towards its enrichment, has the responsibility to respect the cultural heritage of others as much as their own heritage, and consequently the common heritage of Europe. It adds that the exercise of the right to cultural heritage may be subject only to those restrictions which are necessary in a democratic society for the protection of the public interest and the rights and freedoms of others. The right to landscape, droit en devenir, a “right in development”, is a combination of environmental and cultural rights and also presents new aspects to be considered. The landscape concept implies recognition of the rights and responsibilities of populations to play an active role in the processes of acquiring knowledge, taking decisions and managing the quality of the places where they live. Public involvement in decisions to take action and in the implementation and management of such decisions over time is regarded not as a formal act but as an integral part of management, protection and planning procedures. Procedural rights to landscape could concern the right to information, participation and access to justice. The European Landscape Convention states in particular that “Each Party undertakes: to establish procedures for the participation of the general public, local and regional authorities, and other parties with an interest in the definition and implementation of the landscape policies”.7 All action taken to define, implement and monitor landscape policies should be preceded and accompanied by procedures for

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participation by members of the public and other relevant stakeholders, with the aim of enabling them to play an active role in formulating, implementing and monitoring landscape quality objectives. The certainty that strengthening the relationship between the population and its living surroundings underpins sustainable development affects the whole process of landscape policy definition. Moreover, participation is regarded as an instrument for strengthening the identities of populations, which recognise themselves in their surroundings.8 Substantial rights to landscape should concern sensory – visual, auditory, olfactory, tactile, taste – and emotional perception which a population has of its environment. As the Convention mentions, each aspect should be considered according to the “landscape quality objective” formulated for a specific landscape, by the competent public authorities of the aspirations of the public with regard to the landscape features of their surroundings. The European Landscape Convention mentions in its Preamble that “The landscape … has an important public interest role in the cultural, ecological, environmental and social fields, and constitutes a resource favourable to economic activity and whose protection, management and planning can contribute to job creation; contributes to the formation of local cultures and … is a basic component of the European natural and cultural heritage, contributing to human well-being and consolidation of the European identity; … is an important part of the quality of life for people everywhere: in urban areas and in the countryside, in degraded areas as well as in areas of high quality, in areas recognised as being of outstanding beauty as well as everyday areas”. The landscape having become subject and object of law, landscape rights and responsibilities remain to be further defined and made more precise at national and international levels, on the basis of the concepts and realities of life and quality of life, the two main challenges of our societies.

notes 1

As of 19 November 2010, 32 out of 47 member states of the Council of Europe had ratified the Convention: Armenia, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Finland, France, Georgia, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and United Kingdom. Five states had signed but not ratified it: Azerbaijan, Bosnia and Herzegovina, Malta, Serbia and Switzerland.

2

Article 5 of the European Landscape Convention on “General measures”.

3

Article 1 of the European Landscape Convention on “Definitions”.

4

Recommendation CM/Rec (2008) 3 of the Committee of Ministers to member states on the Guidelines for the implementation of the European Landscape Convention, adopted by the Committee of Ministers on 6 February 2008.

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5

Humans Rights and the Environment, Council of Europe Publishing, 2002.

6

The Convention will come into force upon the deposit of ten ratifications.

7

Article 5 of the European Landscape Convention – General measures. The recognition of the broadly-based participation of the society in the spatial planning process by the Recommendation Rec. (2002) 1 of the Committee of Ministers of the Council of Europe to Members States on the Guiding Principles for Sustainable Spatial Development of the European Continent represents also an important step.

8

Public involvement, which may entail contradictions resulting from the diversity of the value systems espoused by the various social groups, should be regarded as enriching and as an opportunity to validate knowledge and the definition of objectives and action. Participation implies two-way communication from experts and scientists to the population and vice versa. The population possesses empirical knowledge (local and naturalistic knowledge) that may be useful in completing and contextualising specialist knowledge. See Council of Europe, Landscape and sustainable development: challenges of the European landscape Convention, Council of Europe Publishing, 2006.

5 the ‘right to Landscape’ in international Law Amy Strecker

introduction While it can be said there is no legal ‘right to landscape’, landscape is implicated in a number of areas of international human rights law. There exists a human rights dimension to the landscape as expressed in the substantive right to a healthy environment; the procedural rights to information, public participation in the decision-making process and access to justice. There is also the cultural rights dimension to the landscape including access to one’s culture, the right to cultural development and the right to scientific and historical research. States have the responsibility towards the international community for protecting landscapes of special value, but they also have responsibility for their own citizens in providing access, information and means of participation in decisions affecting landscape as the setting of their lives. Since the entry into force of the European Landscape Convention (ELC) in 2004, the conceptual link between landscape and human rights assumes new resonance. This is because the ELC has shifted the focus from ‘landscapes’ to ‘landscape’; from conservation to ‘protection’, ‘management’ and ‘rehabilitation’; and from landscapes of ‘outstanding universal value’ to ‘everyday’ as well as ‘degraded landscapes’. The transformation of the concept of landscape from certain areas of conservation to the territory as a whole brings landscape closer to its earlier etymological origins, both Germanic and Latin, when it corresponded to a ‘close-up’ perspective: the territory of a small community. If we conceive of landscape as living space rather than as a detached view – which has been our association since the term re-emerged during the Renaissance – then it has a number of implications for human rights, democracy and access to justice. This chapter explores the interplay between human rights and landscape, and highlights some of the problems that the positing of a human ‘right to landscape’ entails. It is argued that landscape, as ‘public space’, is essentially

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a collective right and consequently is difficult to articulate within the current framework, which espouses an individualistic conceptualisation of human rights. It explores the various international texts dealing with human rights, culture and the environment, and concludes that it is the procedural environmental rights which offer most scope where landscape is concerned. Given the normative developments being made at the European level (Council of Europe and UNECE), the focus of the chapter is predominantly on a ‘right to landscape’ in the European context, albeit other human rights systems will be referred to for the purposes of comparison. Before we begin, however, it must be noted that any discussion of a right to landscape is immediately hindered by the inherent subjectivity of the term itself. As aptly defined by the ELC, ‘[l]andscape means an area, as perceived by people, whose character is the result of the action and interaction of natural and/ or human factors’ Article 1(a). Landscape is perceived and thus has different layers of meaning for different people, which makes public intervention difficult. Nevertheless, Mateo (2003: LV) believes that landscape has a value ‘when a group shows its appreciation, not on the basis of abstract beauty standards but […] because it represents the widely-shared preference of the community’. Underpinning this chapter is the assumption that landscape is a collective right, as it only assumes meaning if appreciated by a respective community.

Landscape and cultural rights The concept of the cultural heritage covers all manifestations and messages of intellectual activity in our environment. These messages are passed on from generation to generation through learning and insights and are seen as ‘mediated through’ the built environment and landscape. Thus we have the idea that the physical elements of cultural heritage – that which has been traditionally viewed as comprising it – are in fact, the vehicles by which cultural heritage (in its intangible sense) is mediated to us. So the material culture is symbolic of cultural identity on a deeper level, a vessel of the intangible (Blake, 2000: 68).

As noted by Francioni (2008: 7), in so far as cultural heritage represents the sum of practices, knowledge and representations that a community or group recognise as part of their history and identity, it is axiomatic that members of the group, individually and collectively, must be entitled to access and enjoy such cultural heritage as a matter of right. The right to culture was first recognised in the Universal Declaration of Human Rights (1948). Article 27(1) states that ‘[e]veryone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’, which clearly recognises an individual right to culture. The International Covenant on Economic, Social and Cultural Rights (1966) reiterates this by providing that states parties ‘recognise the right of everyone to take part in cultural life’ (Art. 15(a)). This changes somewhat in the

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International Covenant on Civil and Political Rights of the same year, which articulates the right to culture not as a universal right but as one belonging to minorities: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language’ (Art. 27). Aside from these soft law instruments, a number of regional human rights treaties directly recognise the right to culture, including the 1969 American Convention on Human Rights (Art. 26), the 1988 Protocol of San Salvador (Art. 14), the African Charter on Human and People’s Rights (1981) (Art. 22), and a host of conventions concerning the international protection of cultural heritage produced by UNESCO and the Council of Europe which refer to such a right in relation to cultural heritage and cultural diversity. Some authors even argue the case for a right to cultural identity (see Donders, 2008: 17–340; Burgers, 1990: 251). Turning now to the question of cultural rights and landscape. Given that landscape embodies both physical cultural heritage and metaphysical associations; that it is important for the construction of identity, for a sense of place and a sense of well-being, can a right to landscape be articulated in cultural rights terms? Indeed the preamble to the ELC states in this regard that ‘landscape contributes to the formation of local cultures and that it is a basic component of the European natural and cultural heritage, contributing to human well-being and consolidation of the European identity’ (emphasis added). If we take the above-mentioned binding and non-binding provisions as a starting point, it would, in theory, seem that there does exist a cultural right to landscape, such as the right of access to one’s culture, the right to cultural development, and the right to scientific and historical research (in the case of epistemic communities), which taken together would imply a negative obligation upon states not to destroy or damage any landscape which embodies the living culture of a given community, and the positive obligation to protect and adopt measures aimed at the conservation and management of the landscape important for the identity of its people/peoples. In practice however, asserting a right to landscape in cultural terms is a more tenuous argument to make in the universal context. This is due to three reasons. First, most of the arguments surrounding the right to one’s own culture have been made from the standpoint of minorities (national, ethnic, linguistic) or indigenous peoples (Almqvist, 2005: 12) and this is particularly the case for landscape due to the often inseparable and holistic way in which indigenous people view land, law and culture. Second, claims to access the landscape articulated in cultural rights terms can often be traced to the forced invasion, conquest or colonisation of inhabited land by foreign powers. Access to the landscape in the indigenous context thus becomes a historical right, not a universal one. Third, the link between landscape and cultural rights would appear difficult in the individual context, because a cultural right to landscape would inevitably be pitted against more expressly

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recognised rights such as the right to property and the right to family and private life. In the jurisprudence of the European Court of Human Rights, for example, landscape and cultural heritage protection only enters the Court when it involves a restriction on other fundamental rights and freedoms, that is, when measures taken by public authorities to protect the landscape or cultural heritage in favour of the ‘public interest’ have been challenged by individuals claiming an infringement of their property rights (see for example Herrick v. UK, Buckley v. UK, Kozacioglu v. Turkey). In these cases landscape enters the Court as an external legitimising factor which impinges on the human right in question; it is not seen as a right in and of itself (I will return to this point later).

Landscape and environmental rights The link between human rights and the environment was first explicitly recognised in the Stockholm Declaration, adopted in 1972 by the United Nations Conference on the Human Environment. The relationship between the environment and human rights is stressed in the preamble, which states that protection of the environment is ‘essential […] to the enjoyment of basic human rights – even to the right to life itself’. Principle 1 expands on this by proclaiming: Man has the fundamental right to freedom, equality, and adequate conditions of life, in an environment of a quality that permits a life of dignity and well being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.

Although these provisions do not directly recognise the right to a healthy environment as such, they establish a link between well-recognised rights and the quality of the environment. Environmental quality is presented as a pre-requisite for achieving ‘adequate conditions for life’, and freedom and equality among human beings is viewed as inseparable from the preservation of an environmental quality that permits human dignity and human welfare. The Stockholm Declaration was couched in terms of a solemn ‘covenant’, that is, a commitment to the protection of an international public good, rather than a reciprocal obligation between states, thus echoing the language of human rights treaties. It also introduced the concept of inter-generational responsibility to protect and improve the environment, and builds on other language contained in the International Covenant on Economic, Social and Cultural Rights, which recognises the individual’s right to ‘continuous improvement of living conditions’ (Art. 11) as well as the ‘enjoyment of the highest attainable standard of physical and mental health’ (Art. 12, para. 1) and commits states to protecting the right by positive measures (Art. 12, para. 2.b). The above provisions are recalled in the preamble to the ELC, which acknowledges that landscape contributes to ‘human well-being’ and

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‘individual and social well-being’. If we conceive of landscape as the setting of people’s lives, or as ‘public space’, then the right to a healthy environment could be read in the right to a quality landscape. As stated by Luginbühl (2006: 32), ‘the concept of well-being involves several aspects of man’s (sic) relationship with the outside world and with himself (sic), which are not easy to separate; a material dimension, associated with the satisfaction of physical and biological needs, and a spiritual dimension, associated with the satisfaction of psychological and emotional aspirations’ – well-being is, as he puts it, is ‘being well disposed in mind and body’. This language changed somewhat in the 1992 Rio Declaration on Environment and Development, which states instead that ‘[h]uman beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature’ (Principle 1), which puts forward an anthropocentric rationale for environmental protection. While the above-mentioned instruments are all soft law, an important step in the form of a binding international treaty came in 1998 with the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental matters. Described by former UN Secretary General Kofi Annan as ‘the most ambitious venture in environmental democracy undertaken under the auspices of the United Nations’, the Aarhus Convention rests on the three pillars of Principle 10 of the Rio Declaration; that is, access to environmental information, which allows citizens to take advantage of the second and third participatory rights – public participation in decision making, and access to justice in environmental issues. The Aarhus Convention is also noteworthy for the way in which it highlights the importance of civil society engagement, and the role of NGOs is also formalised in the operation of the convention itself. Its relevance to landscape will be discussed in the procedural section below.

the european convention on human rights The European Convention on Human Rights (ECHR) makes no reference to any right to the environment in its text or protocols. In 2005, the Council of Europe issued a ‘Manual on Human Rights and the Environment’ which states the ‘Convention is not designed to provide general protection of the environment as such and does not expressly guarantee a right to a sound, quiet and healthy environment’. However, the Convention is a living instrument and as such the case law has adapted itself to include protection of the environment under certain circumstances, namely when a) it has a direct impact on the effective enjoyment of other individual rights and freedoms, such as the right to family and private life and the right to property; and b) as a legitimate restriction of those rights in upholding the ‘general interest’. If we apply this to landscape, the first of these two approaches rests on tenuous grounds because in order to invoke any of the rights in the context

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of the environment, applicants have to show a breach of one of the rights guaranteed in the Convention to ‘individuals’; and this means being individually impaired – directly or indirectly – by the measure in question. The Convention does not allow for an actio popularis. The question of landscape protection has only entered the realm of ECtHR jurisprudence in the second of the above: the upholding of restrictions on individual rights in the general interest of society. There are many cases concerning complaints by persons of restrictions on the use of their property, where both the European Court of Human Rights (ECtHR) and the Commission of Human Rights (the Commission) have held that measures of town planning and building restrictions have been justified for the protection of the environment, such protection being necessary in the ‘general interest’ or for the ‘protection of the rights and freedoms of others’. An example of this can be seen in the case of Herrick v. the United Kingdom (1985), which involved a restriction on the use of a bunker owned by the applicant on the island of Jersey. The restrictive measure consisted of the refusal of an official permit to authorise her owning it as a summer residence. The Commission decided that the decision of the local authority was justified on the grounds of the ‘general interest’ to safeguard a landscape of particular interest, a green zone reputed to be one of the most outstanding features on Jersey. In upholding the restriction the Commission stated that ‘planning controls are necessary and desirable in order to preserve areas of outstanding natural beauty for the enjoyment of both the inhabitants of Jersey and visitors to the island’. In this case and others, the protection of landscape has played a purely ‘negative’ role, in the sense of its interpretation as a legitimate restriction on fundamental rights in the name of ‘general’ or ‘public’ interest; yet it is the ‘general interest’ as decided by a national authority or the state; not the people’s interest. The strict approach of the ECtHR in matters of the environment would preclude a challenge on landscape grounds because a) environmental integrity is not seen as a value per se for the community affected or the society as a whole but only as a criterion to measure the negative impact on a given individual’s life, property, private and family life, and b) at the procedural level, the individualistic approach followed by the Court excludes the admissibility of public interest proceedings to defend the environment, unless the applicants can show a direct impact of the activities complained of in relation to their individual rights. An example of this can be seen in Kyrtatos v. Greece (2003), which concerned the contested draining of a scenically beautiful and ecologically important wetland. Although the drainage and consequent destruction of the wetland resulted in a violation of the law, the ECtHR reaffirmed that ‘neither Article 8 (right to private and family life) nor any of the other Articles of the Convention are specifically designed to provide general protection of the environment as such’ and concluded that the applicants, although they lived in the vicinity of the site, could not prove that there was a direct impact upon their well-being.

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This approach can be contrasted with the communitarian approach to the application of human rights in a number of cases decided under the American Convention on Human Rights (1969). In its ground-breaking judgment in Mayagma Sumo Awas Tingni Community v. Nicaragua (2001), the Inter-American Court held that logging concessions awarded by Nicaragua to private investors in an area claimed by a tribal community constituted a violation of the petitioners’ property rights guaranteed by the American Convention Article 21. In spite of the lack of any express reference to communal property in the text of Article 21, the Inter-American Court interpreted the ‘right to property’ as inclusive of the customary community entitlement of the indigenous people to use their ancestral land for agriculture and hunting and to have it respected against the environmentally and culturally destructive project of commercial logging. In another case, Maya Indigenous Community of Toledo v Belize (2004), the Inter-American Commission found that Belize violated the Mayan communities’ right to use and enjoy their property by granting concessions to third parties to exploit natural resources within traditional Mayan lands. Here the Commission recognised ‘the distinct nature of the right to property as it applies to indigenous people, whereby the land traditionally used and occupied by these communities plays a central role in their physical, cultural and spiritual vitality’. A similar progressive attitude in the conceptualisation of environmental rights as ‘collective’ rather than purely individual can also be found in the case law stemming from the African Charter on Human and Peoples’ Rights (1981). This comes as no surprise given the Charter’s title and the specific mention of a collective right to the environment which states that ‘all peoples shall have the right to a general satisfactory environment favourable to their development’ (Art. 24). In Soc. and Econ. Rights Action Centre v. Nigeria (Ogoniland case), which concerned human rights abuses of the native people of Ogoniland and the inadequate protection of the Niger Delta environment, the African Commission observed that the Niger Delta had suffered from degradation as a result of oil pollution, and citing A. Kiss, concluded that ‘an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and development as the breakdown of the fundamental ecological equilibria is harmful to physical and moral health’.

Landscape and procedural environmental rights The chapter now turns to the question of procedural rights, which perhaps offer the most scope for affecting a ‘right to landscape’ in the European context. A substantive right to landscape may not exist but a democratic right to participate in the planning process does. If landscape is public space and a common resource, then surely the ‘public’ – taken to mean civil society in the broad sense – should be involved in the decisions affecting

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their landscape. Indeed, one of the main objectives of the ELC is to involve the public in landscape policy-making, as Articles 5.c and 6.d attest. In this sense the Convention is an extension of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, to which it refers in its preamble. Emphasis in the Landscape Convention is on the participation of the public in the ‘definition and implementation of landscape policies’ as well as ‘consultation’ in the ‘identification and assessment’, which clearly places emphasis on the pro-active approach to landscape. As stated by Priore (2003: 255), ‘it is clear that involving the public, first by means of a high-profile and ongoing campaign to raise awareness, and then by active public participation in decision-making in landscape matters, is the key element of the Landscape Convention. Without this involvement, the landscape would probably lose its principle function and become either the expression of ugliness, and decay for the majority of people, or an artificial paradise for a privileged few.’ While the ELC provides for public participation in the early stages in the planning process, the Aarhus Convention goes one step further by giving greater substance not only to the meaning of public participation but also the right to review procedures to challenge public decisions. Landscape is specifically mentioned within the definition of environmental information under Article 3(a). Articles 6–8 of the Aarhus Convention identify three occasions for participation of the public: participation in decisions on specific activities; participation concerning plans, programmes and policies; and participation during the preparation of executive regulations and/or generally applicable legally binding regulatory instruments. Furthermore, parties to the Convention must ‘inform people of decisions taken on proposed activities of all kinds which are likely to affect them’ as well as ‘ensure that, in the decision due account is taken of the outcome of the public participation’. The ‘public’ in the Convention is given a broad meaning. Notably, it entitles not only ‘those affected or likely to be affected by’, but also those ‘having an interest in the environmental decision-making procedures referred to’, including ‘nongovernmental organisations promoting environmental protection’ as having the ‘sufficient interest’ required to have access to a review procedure before a court of law (Art. 2(5)). This is extremely significant for landscape, because it recognises a collective dimension to environmental concerns, thus opening the door for public interest proceedings.

the ‘right to Landscape’ at national Level Despite these normative developments at international level, the ‘sufficient interest’ test at national level is still stringent, as a recent report on access to justice in Member States shows (Pozo Vera 2008). Many national courts still strictly interpret ‘sufficient interest’ to mean the impairment of a right, and the applicants must be directly and personally affected by a plan or policy

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in question. Thus the individualistic conceptualisation of human rights still permeates the legal sphere. An example of this can be seen in the recent case of Salafia v. Department of the Environment Heritage and Local Government (2006), which concerned a state-backed motorway route through what is arguably Ireland’s foremost cultural landscape. The Irish High Court dismissed the case on the grounds that the applicant, among other things, did not have ‘sufficient interest’ in the issue at hand: he was not ‘personally affected’ by the decision and was not a ‘resident or land owner’ in the vicinity of the motorway. The judge stated that there are certain cases where a cogent theoretical argument might be made regardless of personal interest, but this is not the case here, as he could not see how an ‘abstract landscape theory’ was one such exception. Ireland was recently found in breach of European Community law for failing to properly implement Environmental Impact Assessment on the approved route and new laws are currently being drafted to ensure the same reckless destruction will not reoccur.

concluding remarks Only if the individualistic conceptualisation of human rights is expanded to include collective interests will landscape have a place in human rights language. Some authors (most notably Donnelly, 1993: 119–50) argue against the notion of collective rights, maintaining that they pose a danger to and have the potential to undermine other substantive fundamental rights. Yet this view does not take into consideration the increasing social empowerment of communities and groups to take part in the deliberative process leading to environmental decisions affecting their lives (as evidenced at the normative level by the ELC as well as a host of other non-binding texts), and to access justice when abuse of power has occurred (as in the Aarhus Convention). This view also ignores the intrinsic link between individual and collective interests in society and makes it difficult to challenge a decision in the public interest, reducing such concerns to the narrow realm of the private individual. The root of this approach of course lies in the Hobbesian-derived vision of humanity as consisting in rights of individuals on the one hand, and rights of states on the other. This individual/state dichotomy has powerfully affected the tradition of Western liberal thought and helps to explain why the individual right to property and territorial sovereignty of states still hold sway. Habermas (1996: 430–52), among others, sees the demise of democracy as a direct result of the triumph of legal liberalism and its underlying need to support the dynamic of modern political economy. He sees the need to reinvest in the idea of justice in democracy, requiring a reinvestment in a kind of ‘communitarianism’, of Aristotelian ‘public spaces’. Since the entry into force of the ELC, this abstract reference to public spaces takes on a literal meaning. This is because the ELC moves away from the approach of the past and espouses a holistic and communitarian notion of landscape. In order

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to assert a ‘right to landscape’, however, the current individual orientation of human rights and the requirement of locus standi need to be expanded to include broader environmental and cultural concerns not necessarily applicable to one individual but vital for human welfare and societal wellbeing.

References Almqvist, J. (2005), Human Rights, Culture, and the Rule of Law (Oxford: Hart). Blake, J. (2000), ‘On Defining the Cultural Heritage’, International and Comparative Law Quarterly, 49:1, 61–85. Burgers, J.H. (1990), ‘The Right to Cultural Identity’, in Berting, J. Human Rights in a Pluralist World (London: Meckler). Dejeant-Pons, M. and Pallemearts, M. (2002), Human Rights and the Environment (Council of Europe Publishing). Donders, Y.M. (2002), Towards a Right to Cultural Identity? (Antwerp: Oxford: Intersentia). Donders, Y. (2008), ‘A Right to Cultural Identity in UNESCO’, in Francioni, F. and Scheinin, M., Cultural Human Rights (Leiden, Boston: Martinus Nijhoff), 317–40. Donnelly, J. (1993), ‘Third Generation Rights’, in C. Brolmann et al., Peoples and Minorities in International Law (Dordrecht: Boston: M. Nijhoff). Francioni, F. (2008), ‘Culture, Heritage and Human Rights: An Introduction’, in Francioni, F. and Scheinin, M., Cultural Human Rights (Leiden, Boston: Martinus Nijhoff). Francioni, F. and Scheinin, M. (eds) (2008), Cultural Human Rights (Leiden, Boston: Martinus Nijhoff). Habermas, J. (1996), Between Facts and Norms, Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press). Lafarge, F. (2006), ‘Landscapes in International Law and European Law’, in M. Sassatelli (ed.), Landscape as Heritage: Negotiating European Cultural Identity (EUI Working Paper No 2006/05). Luginbühl, Y. (2006), ‘Landscape and Individual and Social Well-being’, in Landscape and Sustainable Development: Challenges of the European Landscape Convention (Council of Europe Publishing). Mateo (2003), in C. Añon Feliu, Culture and Nature: International Legislative Texts Referring to the Safeguard of Natural and Cultural Heritage (Florence: Olschki). Pavlakos, G. (2008), ‘Non-Individualism and Rights,’ De Feyter, K. and Pavlakos, G., The Tension between Group Rights and Human Rights: A Multidisciplinary Approach (Oxford: Hart). Pozo Vera, E. (2008), An Inventory of EU Member States’ Access to Justice in Environmental Matters (Milieu Ltd). Prieur, M. (2006), ‘Landscape and Social, Economic, Cultural and Ecological Approaches’, in Landscape and Sustainable Development: Challenges of the European Landscape Convention (Council of Europe Publishing).

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Priore, R. (2003), Presentation at a study day on the European Landscape Convention on 18 January 2001, Revue européenne de droit de l’environnement, October 2003. Vasak, K. (1984), ‘Pour une troisième génération des droits de l’homme’, in C. Swinarski (ed.) Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (The Hague: Martinus Nijhoff).

PART ii

state, community and individual rights

6 contested rights, contested histories: Landscape and Legal rights in orkney and shetland Michael Jones

introduction Awareness of the right to landscape has important implications for the future. It also has a historical dimension. Particularly for legal rights related to landscape, we often meet complex histories, and in addressing the right to landscape we need to be aware of the pitfalls and challenges we may face. According to the Right to Landscape initiative, landscape is considered as embracing the physical environment together with the meanings with which this is imbued. One concern is the relationship between landscape, identity and culture. Another is the relationship – or tension – between the legal status of property rights and the notion that landscape is a shared resource that cannot be owned. Ideological discourses on property are reflected in physical landscapes. I will examine these matters in relation to questions of heritage, indigenous rights, law, memory and meaning. My case study is from Orkney and Shetland, the Northern Isles of Scotland (Figure 6.1). Here awareness of Old Norse legal rights has survived 540 years of Scottish and British rule. I focus on the significance for Orkney and Shetland identity of these survivals and their expression in the landscape, and how they have been used to support divergent claims related to land rights. In discussing landscape and legal rights, my approach is not that of a lawyer or legal historian, concerned with interpretations of the law and its practice, but that of a historical geographer, interested in manifestations of legal notions in everyday life and landscape. Orkney and Shetland were colonized by Norse Vikings c.800 AD. As part of the medieval Norwegian realm, they were subject from 1274 to the law code of King Magnus VI the Lawmender. From the 1230s Orkney passed to a dynasty of Scottish earls, although remaining under Norwegian suzerainty until 1468. That year, Christian I of Denmark-Norway pawned Orkney to the Scottish crown, followed in 1469 by Shetland, in lieu of a dowry for his daughter

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