In the current debate about climate change and its disruptive effects on the health of people and ecosystems, the reclamation of the ‘right to the environment’ has gained momentum, both in theoretical accounts and in legal documents. Yet, it is useful to make a first distinction between the right to the environment and the right of the environment.

The first mainly refers to the right to a healthy environment, which is claimed as a universal right and it belongs to the people living in a specific environment and their right to reclaim a clean, healthy and sustainable space.

The right to the environment includes both substantive and procedural rights. The first ones imply that the environment has a direct effect on the existence of people. Procedural rights, on the other hand, dictate the official procedures to be followed in upholding legal rights.

In July 2022 the United Nations General Assembly adopted a resolution which declares that everyone is entitled to the right to a healthy environment. This resolution implements a series of treaties and international documents, beginning in the 1970s, aimed at placing environmental concerns at the core of legal and political frameworks. Interestingly these documents have put a major attention on the reclamation of health, as a fundamental human right.

Article 37 of the Charter of Fundamental Rights of the European Union mandates the integration of a high level of environmental protection into EU policies, but it does not establish an individual right to a healthy environment.

In Europe, the right to the environment is officially recognised through various legal instruments and policy frameworks at international, regional and national levels. However, there is no explicit recognition of a ‘human’ or ‘fundamental’ right to the environment at the international level, and the implementation of environmental policies and regulations remains a challenge in many European countries.

The risks for human health due to climate change, but also the many risks that can be found in (mainly man-made) environments, such as the case of endocrine disruptors, can be considered among the main reasons for the recent focus on health in environmental treaties.

From a philosophical perspective, the emphasis on human health in relation to the environment stems from the recognition of concepts like relationality and interdependence. This suggests that humans are constantly exposed to the environment and rely on it for their flourishing and well-being. However, this focus on human health can be critiqued as still being anthropocentric. Many international environmental legal documents continue to present a view where humans are the central concern, while non-human entities are portrayed as secondary and dependent on human needs.

The right of the environment is instead legally more problematic and debated as it attributes right to the non-human livings, comprising animals, plants, rivers, mountains etc. Granting rights to non-human entities is legally more complex, yet there is growing demand for it, necessitating a gradual expansion of rights. In this sense the book by C. Stone, Should Trees Have Standing? Law, Morality, and the Environment, first published in the 1970s and then revised recently, laid a seminal seed in the debate. Stone advocated for the fact that the environment and natural objects should be granted legal and personal rights and they should stand in courts of law.

This implies not only a form of guardianship, a legal arrangement in which a court appoints someone (the guardian) to make decisions and care for another person (the ward) who is deemed unable to care for themselves. The procedure of guardianship is often employed, for example, by environmental NGOs. Legal rights for the environment means instead attributing a legal persona to environmental elements. The debate also involves an even more complex issue, discussed for instance in the philosophy of science, concerning the distinction into typologies of non-humans (animals, plants, even bacteria) and the attribution of sentient capacities to those living beings. The problem is broad and decisively unresolved at the present moment.

Yet, recent examples of attribution to legal rights to non-human elements have found a place in some legal systems, e.g. in New Zealand’s one, when the sacred Mountain Taranaki was granted a ‘legal personality’.

Both the right to and of the environment are the tireless results of the interdisciplinary efforts of activists and scholars worldwide, oscillating from claiming the rights of people, of the environment and ecological systems. This story is often intersected with the history of civil rights, especially in the United States.
Among the pioneers of this fight for the environment, we can certainly mention Rachel Carson. In 1962 she shed light on the effect of DDT, a commonly used pesticide for insect control in the United States, until it was cancelled in 1972 by the United States Environmental Protection Agency. The work by R. Carson constituted a breakthrough in the discovery of the dangerousness of DDT for the wildlife and human environment. Her book Silent Spring (1962) is one of the most important steps for the environmental movement and it is a pioneer in environmental studies and environmental ethics.

There are also many examples of the intersection of environmental cases with civil rights and social justice. In this sense, the environmental justice movement developed starting the 1980 denouncing how degradation and pollution disproportionately affect minorities and low-income communities.

The scientific literature on the right to/of the environment is quickly growing and has been developed both by natural scientists and humanities-based scholars. In humanities, this is a hot topic for environmental humanities, environmental philosophy and sustainability sciences, disciplines whose names were almost unknown until 20 years ago, but which continue their deep interdisciplinary and transdisciplinary dialogue with stakeholders and those who live within the places to promote knowledge about the environment and to foster sustainable and emplaced behaviours.

But what, instead, about the right to the landscape?

If the term environment is all over the media and in contemporary scholarship as it conveys a scientific-based approach, the landscape remains the topic of landscape theory, landscape architecture and those humanities and psychology-based scholars who consider it as a valuable term to describe the reality which surrounds us.

Landscape theorists have long acknowledged that the relationality that research on the environment is looking for is already present in many analyses on landscape and in the main legal documents about landscape.

It is worth recalling that the European Landscape Convention, states that the landscape is defined as: “an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors” (Council of Europe 2000a: Article 1) and that the landscape 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 recognized as being of outstanding beauty as well as everyday areas” (Council of Europe 2000a: Preamble).

The importance of this document is widely recognized among landscape theorists, architects, and humanities scholars, who see in the European Landscape Convention an attempt to move beyond the mere aesthetical definition of landscape—landscape considered as a beautiful view—towards an ethical and political interpretation.

Moreover, the Convention already contains in nuce the elements to speak about a right to landscape.

Indeed, a Council of Europe document entitled ‘Contributions of Landscape and the European Landscape Convention to Democracy, Human Rights and Sustainable Development’ (2017), the results of a study group on the ELC, importantly argued that landscapes appear to be the spatial realisation of democracy, human rights and sustainable development.

Other documents which are an implementation of the European Landscape Convention, such as the Florence UNESCO Declaration (2012), or the Latin American Initiative on Landscape (2013) go in this direction, by considering the landscape both a common good and a human right. Respectively they state that: “landscape is a common good, the right to landscape is a human necessity” (UNESCO 2012). This document also states that the protection of landscapes needs the “local and traditional knowledge that have generated them” and that the management of landscapes implies taking into account “social, economic and aesthetics elements as answer to global challenges” (UNESCO 2012).

The Latin American Landscape Initiative (LALI 2012) is a “declaration of fundamental ethical principles to promote the recognition, valuation, protection, management, and sustainable planning of Latin American landscapes” (LALI 2012, 5). The text, written and signed by architects from all over Latin America, takes inspiration both from the ELC and the UNESCO Declaration. Interestingly LALI specifies that the landscape is: “a right that all human beings should be able to enjoy, the enjoyment of which generates commitment and responsibilities” (LALI 2012, 12). LALI advocates for: “the right of the citizens to live in culturally significant surroundings and to guarantee access to the same and the possibility of enjoying it” (LALI 2012, 13).

Yet, to better focus on the notion of the ‘right to landscape’ we have to go back to a central debate in the landscape and environmental literature: the notions of common good and commons. From a historical point of view, ‘commons’ derives from the English legal word for common lands. These were the lands shared by the inhabitants for pasturage and harvest before the beginning of the phenomenon of enclosures. The devastating consequences of this shift for material and cultural commons are the object of a wide literature.

The ideas of commons and common good pave the way for considering the right to landscape, both theoretically and legally.

In the XX century, the term commons gained prominence in 1968 when the biologist Garrett Hardin published his paper The Tragedy of the Commons in Nature. He highlighted how shared natural resources on Earth, the so-called commons, are inevitably depleted due to their collective use.

The paper by Hardin is still widely cited by ecologists and environmental activists who sometimes forget that the solution proposed by Hardin also implied a eugenicist approach. He advocated that the only possible options to face the exhaustion of natural resources might be the management of the commons by private property or by State property. Moreover, pessimistic regarding the possibility that an ecological conscience could arise in the future, Hardin proposes to control breeding, which is the issue at the core of the problems related to common goods.

Hardin’s proposal, based on a Malthusian approach and on a philosophical idea of a society in which individuals are considered as short-term, self-interested rational actors, seeking to maximise their gains, was later put into question by another pivotal researcher: the Nobel laureate Elinor Ostrom. Ostrom was able to give a completely different theoretical and practical approach to the idea of commons.

Elinor Ostrom demonstrates from a theoretical and practical point of view – by discussing several examples: in Japan, Switzerland, Philippines, USA, and Spain – how local property and common pool resources can be successfully managed by local users through a common property regime which preserves the resources and benefit both the community and the nature.

Hardin’s pessimistic view of human nature was thus replaced by a complex and place-based economic and practical perspective. Ostrom challenges the idea that people are inherently selfish and argues against the belief that universal solutions must be imposed by external authorities to address local problems.

For this reason, the application of Ostrom’s theory in the context of landscape could be analysed concerning two pivotal points: firstly, those who live in a landscape have an attachment to it, a social, cultural and political bond, and very importantly the community does not necessarily aims at the exploitation of the land’s resources, yet can be aimed at participative and sustainable management.

Moreover, the idea of landscape as commons has been advocated by landscape theorists. Kenneth Olwig (2013) provided a wide historical analysis demonstrating that the term landscape (landskap; landschap; Landshaft) was already used during pre-modernity in the Germanic/Scandinavian languages meaning a configuration of territory, an assemblage of political community and place. This account conveys the idea that the original meaning of landscape does not refer to a view or just to the aesthetic appreciation of a place, but rather to something closer to the idea of commons, to a body of politics and the management of the land by a community.

“The commons is the material landscape of common lands shared by a community of commoners with customary use rights in the land” (Olwig 2013, 31). The connection between landscape and commons is realised through the political value that both landscape and commons assume in democratic processes.

In conclusion, this literature helps us to frame the idea of landscape as a common good and a commons. Consequently, we can relate the idea of communal participation and management of landscape to the right of people to autonomously manage and live their landscape.

In the end, do we need to choose between the right to the environment and the right to landscape?

The right to landscape and the right to a healthy environment are both important elements of a broader approach to environmental protection and sustainability, which recognises the interdependence of human rights and the environment and the need to protect both for the benefit of present and future generations.

The right to a landscape and the right to a healthy environment often overlap, as the preservation of cultural landscapes often requires the protection of the natural environment, and vice versa. However, the two concepts also have distinct legal and political implications, with the right to landscape focusing often on cultural heritage, while the right to a healthy environment focuses primarily on human health and well-being.

As a researcher investigating both aspects of this topic, it is challenging to adopt a definitive stance; however, the relational nature of landscapes has been increasingly emphasized through the examination of ongoing, situated practices and interconnections that occur within our daily natural and urban landscapes.

All images were taken by Laura Menatti at places where she lived and worked.

To explore this topic further:

Menatti, Laura (2017). ‘Landscape: from common good to human right’, International Journal of the Commons, 11(2), p. 641–683. Available at: https://doi.org/10.18352/ijc.738.

Laura Menatti, PhD, PhD
KLI, Konrad Lorenz Institute for Evolution and Cognition Research
Klosterneuburg, Austria
Laura.menatti@gmail.com

Laura Menatti is a researcher with a PhD in aesthetics from the University of Pavia and a second PhD in philosophy of globalisation from the University of the Basque Country.

Her primary research focuses on environmental philosophy, landscape philosophy, and the philosophy of medicine. Through interdisciplinary analysis, she explores social and political dimensions, as well as environmental ethics, with particular emphasis on landscape management in the context of climate change. Her work also encompasses the perception of landscape and the environment from both historical and cognitive science perspectives.

Currently, she aims to bridge environmental philosophy and the philosophy of medicine through the concepts of salutogenesis and adaptivity.

She has been teaching and carrying out her research in different faculties and departments (medicine, architecture, philosophy, science) in Spain, Chile, Italy and France.