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Transcript: A Human Rights Approach to Land with Kirsteen Shields

Transcript - EP2 - A Human Rights Approach to Land with Kirsteen Shields

*The transcript has been lightly edited for clarity and comprehension

Adam Calo: My research is all about the problem of access to farmland.  The whole premise is that without secure long-term access to quality farmland, the types of sustainable agriculture that we can propose, run experiments on, or fantasize about are really just a pipe dream. In the United States, I'm most familiar with the types strategies to provide land access to farmers, which often involve a heroic effort of some kind —fights over small parcels of land or a long journey to extending a lease from one year to 10 years, and so on.

And then I saw a presentation by the guest of this podcast, Dr. Kirsteen Shields, who is an expert in international law at the University of Edinburgh, that first introduced me to this idea of a land reform agenda in Scotland. And for me, that was really important revelation—what it did was flip this problem of land access on its head, that instead of thinking about what the farmers need to be doing or pro- farmer organizations need to be doing to win small parcels or preserve a few farms, what if we could reshape the entire system of land use as a national priority.

And I think what's really important to get from our conversation in this episode is how the land reform legislation itself attended to this problem of aspiring to reshape land entitlements for everyone but without infringing on the rights of property for individuals. And it turns out that a key move that may have pushed the Scottish Land Reform Acts over the line was an appeal to human rights legal framework, suggesting that where an individual right to property might be unbalanced in the eyes of the law is where it stifles the flourishing of all other entitlements. This legal manoeuvre raises important questions about what land for, what is does in society, and who gets to decide.

Kirsteen Shields: There's been a land reform agenda in play at Scottish parliament for quite some time. The land reform legislation effectively extended a pre-existing community right-to-buy abandoned neglected land.  And then in the Land Reform, Scotland Act 2016, there was a new community right-to-buy land to further sustainable development. This is expanding the grounds on which a community can seek the transfer of land from private property ownership into community ownership.

In 2018, I think, the Island of Ulva was bought for £4.4 million as a community buyout. And that was a very small community group who successfully received support from the Scottish land fund to buy the Island.

Adam Calo: This seems pretty radical, that the government is using money from its lottery fund to transfer an entire Island from a single land owner, to I imagine it was just a handful of tenants who were there before, right?

Kirsteen Shields: The Ulva story is so interesting. I mean, it's amazing stuff you couldn't write this stuff. It wasn't the happiest of handovers, shall we say? And also the other thing, just incredible, Ulva itself is just this place of incredible beauty, a kind of a mythical beauty. 

Adam Calo: So immediately I think, while community control seems nice. What about the rights of these landowners who might feel threatened that their assets are at risk of being expropriated by the government?  

Kirsteen Shields: Okay. So that has been a key concern. And there was a lot of lobbying, against the most recent legislation, the Scottish Land Reform Act 2016. Statements made in the press that this would be a violation of landowners absolute right to property.

And there was, it was quite a kind of heated and hostile debate. Misrepresenting the law as it stands as well on this. Some parliamentarians were even saying, we're even talking about an absolute right to buy. But there is no such thing as an absolute right to own property. The right to property, when you trace it back, if you're using the ECHR definition, which is the most reliable right to use if you want to defend property within UK courts—  

Adam Calo: That's the European Convention of Human Rights, which Scotland's subscribes to.

Kirsteen Shields: Scotland is a member through the UK.  The ECHR right to property is, is actually a right to enjoy peaceful possession of property.

And it is qualified and can be qualified … it can be limited in respect to the public interest.  And when there's a phrase like that within law, “public interest”, that then may fall on judges to define, the meaning of that term, given the facts of the specific case. So we can look at how the court has interpreted public interest throughout history.  We see that the court gives a lot of discretion to member States as to how they define public interest and taking property back into national ownership for the benefit of the nation has been seen in previous cases.

Adam Calo: There's one concern that the right to property is kind of apex right. I mean, it is article one protocol one of the European Convention of Human Rights.

Kirsteen Shields: Okay. Well, first of all, I would say that understanding it as “protocol one article one” makes it sound more important than it is. The main body of rights are within the Convention. Protocol really means annex or, you know, late addition to the Convention and the Convention has its own catalogue of rights.

So as you know, the kind of scroll that you would see someone holding up and that original scroll is the ECHR, the Convention. And there has been added onto it, important amendments in the form of protocols. The first of which was protocol number one, which includes the right to property and it also includes the right to education. So although it's the first right is actually like the 21st, right.  Because the right to a fair hearing, the right to be free from inhuman and degrading treatment and all these other rights are in the main text.

But some couldn't be agreed. And this represents, the fact that it was a late comer, it's often misinterpreted and mis-understood as being more significant to the ECHR historically than it was.  And when you think about the history and the merging of different ideologies that was happening in Europe at that time right down the middle of Germany and East and West Germany, right and left politics coming through Europe from different directions.

Leftist politics coming through from the East and more liberal, libertarian politics coming from other directions.  Then you understand why they couldn't agree on the right to property at the first sitting, because Germany was at the table, Poland was at the table, a big melting pot of countries were at the table. And they couldn't agree.

But article one, protocol, number one, the right to peaceful enjoyment of possessions, states that every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

Adam Calo: So is that where you're saying that in that second part where it says, yeah, you can't be deprived of your possessions unless it's in the public interest. So as long as you do due diligence to explicate and make a case for the public interest, then, there is a balance between a right to property and other rights.

Kirsteen Shields: Absolutely, these aren't absolute rights , the state can interfere in those rights if in pursuit of the public interest. If the state decides that property has to be requisitioned or confiscated the state or the agents of the state agents of government can do that.

Adam Calo: You were involved in debates about what exactly how these different types of land reform legislation should be written and described. And you testified to the Scottish Parliament about these issues, and specifically it seemed like one of the things that you contributed was trying to think about the public interest more clearly by injecting  thinking about other rights that might be involved in terms of land use decisions, most notably, economic social and cultural rights.

Kirsteen Shields: Absolutely. Economic social and cultural rights are things like, right food, right to education, the right to health, and the right to housing. What human rights advocates, especially those who are economic, social and cultural rights focused, advocate is that by incorporating these rights as legal obligations, states can still be free to pursue any political agendas that they wish, but there is a basic platform of say welfare provision or support that States can't violate.

So last night there was the vote in the House of Commons about whether or not free school meals will continue to be provided over the Christmas holidays in England. The background to this is that in recent years there's been a good amount of research demonstrating the problem of holiday hunger for children. So when children who may normally go to school and receive free school meal, and when they go on holiday over the summer, they don't receive a sufficient nutrition.

That's been recognized and documented and there have been successful campaigns to encourage the government to provide school meals over holidays. Now, it seems to be, especially this year, every time there's a holiday on the horizon campaign groups have to go back to campaigning and lobbying the government to make public funds available for this. And really if that was a legislated, if that was in law and codified as a basic right, that the state should not infringe this, the state should protect people from hunger and protect the right to food, then we wouldn't have to campaign for these basic services.

So the economic, social and cultural rights agenda has always been left a little bit in the air, hanging dry — That States can pursue economic, social, and cultural rights as political objectives as far as they want, but they don't need to be legally bound by these obligations.

But within human rights, I think, there's a very strong movement to say that it's time now that economic, social, and cultural rights were rebalanced and integrated at the same level of civil and political rights are.

Adam Calo: I think one of the things that you've made a distinction about in the land reform debate is kind of reactive versus proactive position towards human rights.

Kirsteen Shields: If we can restructure systems so that we're actively promoting and protecting rights rather than trying to avoid violations, then it's a much stronger place for governance it's a much healthier, foundation for society.

Adam Calo: You wrote something in this “Land Lines” piece that I often refer to, to learn about the progress of land reform and the way it connects to human rights. You write: 

"in the European Convention of Human Rights, the right to property is nevertheless not an absolute right, nor a priority, right nor a trump card over all other rights and interests."

So are these economic cultural and social rights. These are the other rights and interests that you're talking about there?

Kirsteen Shields: Absolutely. Although I would also say, you know, why not include all of the other rights? So, it could be at civil and political rights, such as freedom of thought, belief in religion or freedom of expression or freedom from slavery and forced labor. So it's not only,  the right to property versus economic, social and cultural rights.

It's the right to property versus all other rights. It's taken on an importance that's completely disproportionate to its value to society. And the reason why it was always upheld was because it was considered to be extremely valuable to society. If people don't have the right to property, then perhaps they don't have the same economic incentives to incentivization and markets don't function as well and so forth.

That may be true, but there are there are other ways to experience the world than through  markets.

Adam Calo: It seems like in the beginning, when some of these ideas about land reform in Scotland we're being started, there was a worry that they would impinge on this kind of idea of an absolute right to property. But by the end of the of the process with all of these land reform Acts coming into force, it seems like the Scottish Parliament is accepting the premise that you have offered that there is virtue in balancing the rights of property with other rights.

Kirsteen Shields: Absolutely. The Scottish parliament in this legislation have been very progressive, and that's due to really good leadership, of the committee. Recommendations about integrating the UN international,  covenant on economic, social and cultural rights were heard and were responded to and the international covenant on economic social and cultural rights is embedded in the land reform act as a sort of reference document to which decisions can be referred. So when thinking about the public interest, the covenant should be referred to. So, so that's really progressive.

And I mean, at the same time. Why not?

Adam Calo: One of the things that I hear if I'm talking to maybe a more traditional economist when I'm telling them the story of Scottish Land Reform as I know it is, they say, well, that's all good, trying to increase productivity, increase wellbeing of the public, but why does the ownership have to change?

Why not just change the behavior of the individuals who own the assets so that they, their activities lead to better ecosystem services, more food production, whatever you want to do. It's probably easier to mobilize these individuals who own the assets, rather than these kinds of community bodies that have a charter and many members.

Kirsteen Shields: Absolutely. I encounter that all that often is too. And I think it boils down to really decision making processes, fairness, and democracy, around decision making processes. And where there is fairness and democracy, what that then regenerates and, uh, but then within communities and within populations.

So yes, you may have a very benevolent landowner and he may be perceived as very benevolent to everyone.  Without participation, active participation of communities, in decision making, There's a sort of lack of certainty and a lack of net investment, personal investment in the outcomes of that community and off that piece of land. There must be such interesting research to do around the psychological benefits of community ownership.

But we don't necessarily need to look to new research and we can also look back to What we know about when communities are indentured or owned by individuals the psychological harms that comes from being a passive community, not having any real power to change  the direction or the use or the ethos over particular territory.

Historically we see that that has been very damaging and very harmful and leads to significant deficits in representation, especially of minorities. We really need to level up on some of these structural disadvantages and transferring ownership is a way to do that, to treat people with dignity and with decency and to engender equality in decision making.

Adam Calo: Yeah, it makes me think, you know, cause I feel like there is a consensus emerging that land use should change,  and quickly in order to address some of the threats of loss of biodiversity the negative effects of climate change and the need to provision resources to an increasing population.

But, in the end, that's just another value that is being placed on the land.  Is it a victory if you have these landscapes that are changing in land use, but without any of that representation without any true distribution to the people who are embedded in that place?

Kirsteen Shields: Yes, and these are really difficult balances to get right. But we can get there. And we see that we see the other communities have been able to do that from around the world. And increasingly, I do think that it is possible. It's not beyond the wit of humanity to find win-wins, Although it is difficult. It is very difficult.

And if you know if we were thinking about kind of unintended consequences of successful campaigns for economic, social, and cultural rights, if we focus so much on economic, social, and cultural rights that we neglected the evolution and the emergence of environmental rights, that would be the next failure or the next kind of challenge.

You know, we don't want to be sitting in 20 years time saying  “We focused so much on the right to food that they didn't think about the right to environment. And so we've got to keep all these things in play and regard for the green shoots of rights and try to build them up and try to make  the rights framework as well equipped to align with restoration of ecosystems as it can be.

So if we focus purely on everybody's, right to food, health, and housing and don't think about how this has to be balanced with environmental interests, then we will be facing an even greater crisis very quickly.

Adam Calo: What do you think that land is for?

Kirsteen Shields: Land represents so much and it's got a lot of personal, as well as professional interests tied up in it and therefore it's a real passion subject.  But I also think that everything does go back to land scientifically, and also historically.

Land. It can be good for, for so many things. Our challenge is to look after it as a shared resource and as a collective good as a common good, and to, try to save it from the greed that seems to permeate our cultures.  Land should be enjoyed present and future generations and it should not be used to exclude or denigrate populations. But I have to say that is a very, very difficult question.

 Adam Calo: That's a really good answer though.

Thanks for talking land with me on the podcast.

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