Land & Human Rights – The Tide of History is Lapping Over Scotland's Land

In this blog – the fourth in our series of 'Land &' blogs – Alan Miller, Professor of Practice in Human Rights at Strathclyde University, explores the connection between ‘Land & human rights.’

The tide of history is lapping over Scotland’s land.

The ambitious and far-reaching Human Rights Bill due this parliamentary session is part of this tide and will help further advance land reform.

The Bill will be based upon the Report published in March by the Scottish Government’s National Taskforce for Human Rights Leadership.

This blog briefly outlines some of the context and content of the Taskforce Report as well as some of its potential implications for land reform.

Context

Three key drivers contributed to the Report’s recommendation of a new 21st century human rights framework for Scotland.

Firstly, the experience of Scotland’s human rights journey over 20 years of devolution pointed to the need of a new framework. This should include not only the civil and political rights of the Human Rights Act, which incorporates the European Convention on Human Rights (ECHR), but the full range of internationally recognised rights including economic, social, cultural and environmental.

Secondly, Brexit gave an impetus to this need by weakening the existing framework.

Thirdly, Covid gave an urgency to a new human rights framework. The lack of economic and social resilience, the structural inequalities and the environmental crisis were laid bare by the pandemic.

The UN gave a call to place human rights at the centre of all efforts to "build back better", to act with greater urgency to this message from nature as well as the underlying climate crisis and to take transformative steps to achieve the Sustainable Development Goals.

The Taskforce Report is necessarily ambitious in rising to these challenges.

Content

Scotland is now on the cusp of its biggest ever step in its human rights journey. The Bill and its implementation can be central to a just and sustainable post-pandemic recovery and become world-leading in doing so.

The new framework will include the incorporation of five UN treaties – providing economic, social and cultural rights to everyone and ensuring that women, children, disabled and ethnic minority people enjoy equal access – and will also include the right to a healthy environment.

There will be a range of innovative measures to both ensure the necessary accountability of the government and public authorities as well as to enable public participation so as to achieve the framework’s effective implementation.

The Bill is recommended to require future laws, policies and practices as well as budgetary decisions to give further effect to the framework rights. It therefore presents significant opportunities to advance land reform.

Human Rights Bill and land

The mutually reinforcing relationship between human rights and the protection of the environment has been clearly presented in the UN Framework on Principles on Human Rights and the Environment. The Taskforce Report recommended a right to a healthy environment to give effect to this.

Land is a national resource. Scotland’s Land Rights and Responsibilities Statement is already influenced by human rights and the explicit incorporation by the Bill of the International Covenant on Economic, Social and Cultural Rights (ICESCR) will serve to advance the Statement’s further development.

For example, there is expected to be an explicit duty on the Scottish Government and public authorities to apply through legislation, policy, practice and budgetary decisions the “maximum available resources” for the “progressive realisation” of the rights to an adequate standard of living, including to housing and food, and to health and the enjoyment of cultural life as well as to protect the natural environment. This clearly links to the economic and socially productive use of land.

Another key link between land and human rights lies in what will become an ever clearer understanding of the “public interest” to be interpreted and applied in the context of land reform by law, policy and decision-makers as well as by the courts.

Importantly, this will support solution-oriented dialogues and dispute resolutions involving interested parties on questions of land use and ownership.

When necessary however, courts will balance private landowner property rights with the public interest in determining any challenges to land reform. In interpreting the public interest at stake, due weight will be given to the will of Parliament and its incorporation of the ICESCR. Subsequent legislation giving further effect to the ICESCR will then provide further specificity and clarity to the courts and all interested parties.

Consequently, the “human rights” dimension of land reform should develop beyond the perceived “red card” of the private property right under the ECHR.

For example, a broader judicial approach is now being witnessed in climate change litigation around the world in the context of cases being successfully brought against governments and corporations regarding their inadequate climate change actions.

Courts are giving weight to the public interest through increasingly taking into account the will of national parliaments and international agreements and treaties such as the Paris Climate Agreement which defines the necessary emission reductions , the inter-generational equity required by the UN Convention on the Rights of the Child and the responsibilities of business under the UN Guiding Principles on Business and Human Rights.

This tide of change is now lapping over Scotland’s land and will profoundly affect its future use and ownership.

Alan Miller is Professor of Practice in Human Rights Law at the University of Strathclyde, an independent expert with the UNDP Crisis Bureau and served as Independent Co-Chair of the National Taskforce for Human Rights Leadership.