Landscape, Property and Spatial [In]Justice

Origins of the Project by Amy Strecker, Principal Investigator

Ambrogio Lorenzetti, Effetti del buon governo in campagna/ Allegory of good government (1339).
Ambrogio Lorenzetti, Effetti del buon governo in campagna/ Allegory of good government (1339).

My interest in the role of law in landscape governance came about when I was an MA student of cultural policy at University College Dublin. At the time, Ireland was undergoing rapid change due to the so-called Celtic Tiger, the term used to describe the economic boom of the 1990s and early 2000s, when Ireland went from being one of the least developed countries in Western Europe to one of its wealthiest. To set the scene: the year was 2004, road building was equated with progress, heritage was deemed a nuisance, and property was king. It was the year that several controversies concerning road development and heritage sites came to a head, the same year that the then Minister for the Environment and Local Government brought in an amendment to the National Monuments Act diluting safeguards that had been introduced in the previous legislation by Michael D Higgins (on foot of the destruction of the Wood Quay Viking site). I wasn’t a law student (yet), but I wrote my MA thesis on the National Monuments (Amendment) Act 2004, its origins and its implications for the protection of cultural landscapes in Ireland.

In one of the most controversial planning decisions ever to have been made by the Irish state, the government had just approved the M3 motorway through the cultural landscape of Tara. This wasn’t just a site of old “pots n pans” as infamously described by one local politician, but “probably the most consecrated spot in Ireland”, as W B Yeats wrote in 1902.  A landscape with more than usual cultural importance from the standpoint not only of archaeology, but also of history, mythology, folklore, language, and placenames. Tara was not only ancient and hallowed place, but also very much a living landscape still considered special by the people who visited and used it up to the present. It seemed incongruous to me at the time that there existed several international and European laws pertaining to cultural landscape governance, including the recently entered into force European Landscape Convention, but these were nowhere to be seen or heard. An individual did take a case challenging the government’s decision to route the motorway through Tara, but the case was dismissed because among other things, the applicant did not have sufficient interest in the case, he was not a landowner in the vicinity, and the judge could not see how an abstract landscape theory justified departure from the rule. It also became apparent that on the surface, what looked like a national case was in fact rather international in character: the significance of Tara extended beyond Ireland, the investment consortium behind the motorway was international, Tara was later the subject of infringement proceedings against Ireland for failure to properly transpose the EU Environmental Impact Assessment Directive into the National Monuments Act (and therefore carry out an additional EIA on the route when new national monuments were discovered). Tara was also subsequently placed on the Tentative List for World Heritage status by the Irish government itself, an interesting development, since the very basis advocated for inscription on the Tentative List is the one that was rejected by the Irish state in the case against the motorway.

{‘scapjan’= to shape}
{‘scapjan’= to shape}

Landscape = land shaped by people

I went on to write my PhD on the role of international law in landscape governance at the EUI in Florence. The role of law in landscape governance is about much more than safeguarding special places with high natural or cultural heritage value. Landscape represents a symbiotic relationship between people and place over time, and landscape law not only includes protection measures but also an acknowledgement of the rights of communities to participate in the decisions affecting their landscapes. I argued that the emerging landscape law represented in the European Landscape Convention and other international texts recovers some of the substantive nature of landscape defined by geographer Kenneth Olwig in his seminal paper Recovering the Substantive Nature of Landscape (“a substantive understanding of landscape is more concerned with social law and justice than natural law and aesthetics”). The incongruity of international norms advocating more localised versions of landscape governance 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 (Saskia Sassen, 2008). An example of such assemblages are the “Right to Landscape”, “Defining Landscape Democracy” and “Landscape Citizenships” initiatives, which gathered together scholars from a variety of disciplines and regions concerned with the social justice dimension of landscape, transcending inter-state boundaries. For me, these movements contributed to my thinking on landscape as a term that was re-imagined in part as a result of the social demise of property.

But it became clear through my research that, while landscape is recognised as having a strong human rights dimension, legal claims for rights to landscape, while based on real issues of concern – and sometimes on genuine violations of national law – are not a viable means of accessing justice for land rights violations or for preventing destructive development in cultural landscapes (Strecker 2018). This is because landscape is still within the realm of public policy (sovereignty over natural resources); in practice, it is often considered in preservationist terms rather than substantive ones dealing with peoples’ relationships to the places where they live; and while human rights are for the most part considered as individual rights, landscape is a collective good, and difficult to articulate within the current framework.

As a landscape law scholar, it took me some time to admit the legal limits of landscape as a tool for accessing justice. For all the normative developments made in environmental justice and cultural rights, property still dominated the way in which cases concerning land were being interpreted at national and international levels. An applicant’s standing or sufficient interest is often equated with land ownership rather than any other form of relation to land, and access to justice for communities facing destruction of their local landscapes (and consequent dispossession and/or environmental degradation) can be difficult to prove either due to the lack of substantive environmental rights or to the way in which access to cultural heritage is narrowly construed by the judiciary.

By contrast, the right to property has been interpreted in the Inter-American context to include communal customary tenure and the collective rights of indigenous peoples, as well as spiritual and cultural links with land, even in the absence of title. In the case of Maya Indigenous Communities of Toledo District v Belize,for example, the Inter-American Commission found that Belize had violated the Mayan Communities’ right to use and enjoy their property by granting concessions to third parties to exploit natural resources without informed consent (Case 12.053, IACtHR Report 40/04). The Commission noted that indigenous peoples’ right to property is based on international law, does not depend on domestic recognition of property interests, and is grounded in custom and tradition (paras. 153, 194). Likewise, in Xákmok Kásek Indigenous Community v. Paraguay, the Inter-American Court repeated that for indigenous communities their relationship with the land is not merely a matter of possession and production, but rather a material and spiritual element that they must fully enjoy (IACtHR Series C No. 214, para. 86). The Court also noted that while this concept of property does not necessarily correspond to the classic concept of property, it nevertheless deserves equal protection under the American Convention of Human Rights, and that

“failing to recognize the specific versions of the right to use and enjoyment of property would be equivalent to maintaining that there is only one way of using and enjoying property and this, in turn, would make Article 21 meaningless for millions of individuals.”

(para. 87)

This case law is significant because it recognises the importance of values in land beyond that of private ownership. Yet two problems emerge here. One is that indigenous peoples still face enormous challenges in the implementation of these decisions due to, among other things, the way in which property is enshrined and conceptualised in national constitutional law. Two, issues of land access not only affect indigenous peoples, but also millions of marginalised communities worldwide depending on land for common survival. Limiting a cultural interpretation of property to an exception is sidestepping the fundamental injustice, as well as the emancipatory potential, at the heart of the concept as it applies to rural communities more generally. My time spent researching land rights in the Caribbean, as part of another ERC project at Leiden University, contributed to my awareness of the unintended, and at times essentialising, effects of international law (Strecker, 2015, 2017).

Salybia Church, Dominica. Photo: Amy Strecker
Salybia Church, Dominica. Photo: Amy Strecker

The Janus face of international law

I also came to realise that focusing on aspirational norms only captures half of the picture. Behind most major landscape disputes lurks another field of international law that often plays a much more influential role in terms of its capacity to affect local environments and facilitate destructive development. Take the Keystone XL (Dakota) Pipeline for example: what was happening behind the scenes was a major investment to the tune of billions of dollars facilitated by international economic law. When the Obama administration refused to approve the project based on environmental concerns, TransCanada sued the US government for US$15 billion under NAFTA’s dispute settlement mechanism (ICSID Case No. ARB/16/21). Trump subsequently reversed the decision and gave the green light to the pipeline (TransCanada then dropped the case).

International investment dispute settlement mechanisms give foreign investors the right to claim for compensation for the expropriation of their “property rights” in investments, even where decisions were made on the basis of environmental, public interest or other human rights concerns. Given that land-based investment in agriculture, resource extraction or infrastructure covers a very significant amount of global investment, the abstract notion of property rights in international investment law (land as commercial asset) frequently collides with the ‘lived-in’ property rights of people and communities on the ground (see Cotula, 2017). Imagine the asymmetry whereby major investors can be compensated for loss of (potential) revenue, but local communities who have been dispossessed or whose landscape has been degraded, receive nothing. Yet that is often the reality. The disparity between who gets to have property rights and who does not, is still substantial.

Access to justice remains a major challenge for communities facing landscape destruction worldwide

While landscape is increasingly recognised as having a human rights dimension, the rights associated with landscape are largely non-justiciable and ultimately will never operate on a level playing field as the more substantive right to property. Yet can property adequately protect the various relationships between people and place, particularly the rights of access, collective customary tenure, and other cultural links with the land, even outside the indigenous context? How do regional human rights courts differ in their recognition of the multiple dimensions of land in the context of property. How does property deal with layers of competing rights to land because of historical circumstances? And finally, does the recognition of land as collective property affect positive change in practice? The project seeks to answer these questions.

The canon of property already has an extensive scholarship, and the aim of this project is not to rehash critical studies of property, but rather to build on the existing scholarship with a focus on international law and spatial justice. In a world where land-based projects are increasingly international in character, it is not possible to understand global landscape governance without examining the role of international law in the conceptualisation, 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.

Although property was excluded from the two Human Rights Covenants of 1966 (having originally been included in the UNDHR), it was subsequently included in the regional human rights frameworks and is one of the most litigated provisions at regional level. If property can include abstract economic interest such as shares, why can’t it also include substantive interest such as community use? Some national laws recognise land rights outside ownership, but these depend largely on political will and are open to exploitation, which is one of the reasons why supranational human rights remain important.     

Propre {one’s own, particular to, special}

Concepts, as well as their legal character, change over time in response to societal needs. Nicole Graham has shown that in the early etymology of property, land had significance greater than the sum of its economic production value and was also an important component of identity (Graham, 2011). The early notion of property entailed the mutual identification of the owner and the owned, whereas the modern meaning of the word divorces property from identity. The project will ascertain whether property can recover some of its early associations with identity, and it will push the boundaries of the concept to advocate a more place-based interpretation of property in international law. In doing so, I hope to contribute to the critical discussions engaging with the colonial origins of international law and its and fragmentation, but also the diffuse and discursive role played by international law as a reference point and a language of protest in the most unlikely places. At the heart of PROPERTY[IN]JUSTICE is a desire to step outside the traditional ways of thinking about international law, to assess not only its origins and its impact, but also its use and contestation in the Global South and as well as the Global North. The overarching research question of the project is:

How does international law facilitate spatial justice and injustice through its conceptualisation of property rights in land?

*The term ‘land’ is used in the project’s title rather than ‘landscape’ because it is more relatable outside the European context.


Cotula, Lorenzo, ‘Land, Property and Sovereignty in International Law.’ Cardozo Journal of International and Comparative Law, 25 :2 (2017), 219-286.

Egoz, Shelley, Makhzouni, Jala, and Pungetti, Gloria (eds.), The Right to Landscape. Contesting Landscape and Human Rights, Ashgate, 2011.

Graham, Nicole, Lawscape: Property, Environment and Law, Routledge, 2011.

Olwig, Kenneth ‘Recovering the Substantive Nature of Landscape’, Annals of the Association of American Geographers, 86:4, 1996.

Sassen, Saskia, ‘Neither Global nor National: Novel Assemblages of Territory, Authority and Rights’, Ethics and Global Politics 1 (1-2), 2008, 61-79.

Strecker, Amy, Landscape Protection in International Law, Oxford University Press, 2018.

Strecker, Amy, ‘Landscape, Property and Common Good: The Ambiguous Convergences of Spatial Justice’, Egoz, Shelley et al. (eds.), Defining Landscape Democracy, Conference Proceedings. Norwegian University of Life Sciences (NMBU), 2015.

Strecker, Amy, ‘The Law is at Fault?: Landscape Rights and ‘Agency’ in International Law’, in Ed Wall and Tim Waterman (eds.), Landscape and Agency: Critical Essays, Routledge, 2017, 52-64.