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Landscape and Legal Identity

Amy Strecker
Associate Professor at the UCD Sutherland School of Law, University College Dublin

Landscape and law may seem like unlikely bedfellows. Indeed, I often find myself at law events being the only landscape scholar, and often at landscape events being the only law scholar! Yet the relationship between law and landscape is far-reaching, touching on human rights, environmental protection, cultural heritage law, property law, and spatial justice.

Landscape’s legal identity has evolved from being conceptually tied to nature and aesthetics to a much broader, dynamic concept, emphasizing the human dimension of landscape and the symbiotic relationship between people and place over time. Landscape law now includes not only protection measures, but also an acknowledgement of the rights of communities to participate in the decisions affecting their landscapes (Strecker, 2018), thereby bringing it closer to its early origins, when community justice, body politic and custom were embedded in the concept (Olwig, 1996). The incongruity of international norms advocating more localised versions of landscape is one of the paradoxes of our modern globalised world, where global assemblages of territory, authority and rights cut across the binary of national versus global (Sassen, 2008).

But while landscape’s legal identity has been partially recovered at the level of norms, there is still a gap at the level of practice. Procedural rights are fundamental to spatial justice, yet the emphasis in the European Landscape Convention (ELC) rests on participatory rights, and extending participatory rights in national law beyond environmental aspects to also include the cultural and place-based dimensions of landscape remains a challenge in many states. This is because in practice, landscape is often considered in preservationist terms rather than substantive ones dealing with peoples’ relationships to the places where they live. The ELC presupposes a functioning (deliberative) democracy where decision-making is representative – an ephemeral goal for many states. If landscape’s legal identity is ultimately linked to the notions of custom and commons, and to use and access, we need to be able to articulate these rights in substantive terms when faced with unjust situations.

The discursive influence of the ELC over the past two decades illustrates the societal role of law in acting as a reference point and providing a vocabulary for collective action. But as a tool for accessing justice, we need to look beyond the ELC and insert landscape within the vocabulary of human rights. How we do this has been a recurring theme of my research since 2005. After exploring rights relating to culture and the environment, I am now “dancing with the devil” and scrutinizing (or subverting?) property, both the idea of land as property, and the interpretation of property rights in land.  As a landscape law scholar, I avoided property for a long time, but I gradually realized that it is not possible to understand global landscape governance without examining the role of law in the conceptualization, interpretation, and allocation of property rights, not just in terms of traditional binaries of individual-state, but also across public and private, communities and non-state actors.

Property is at the root of the much landscape injustice, but can it potentially also be part of the solution? If property can include abstract economic interest such as shares, why can’t it also include substantive interest such as community use? A current ERC-funded project I’m directing explores this and other questions, in what is essentially a project about the realisation of landscape’s legal identity – though a re-examination of property!

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