Climate change is a property problem. Exploitation of the world’s resources made possible by the concept of private property causes climate change.
Yet, property forms part of an iterative cycle. Just as it causes climate change, the consequences of global warming change property. So property is also a climate change problem. And because it is, the solutions to the problems it creates lie within the concept of property. In Resilient Property, Climate Change and the Decision in Verein KlimaSeniorinnen Schweiz v Switzerland Bram Akkermans and Lorna Fox O’Mahony show us how that might be.
In Verein KlimaSeniorinnen Schweiz v Switzerland, the Grand Chamber of the European Court of Human Rights’ (ECtHR) found that critical gaps in the Swiss Federation’s framework for mitigating climate change constituted a violation of the European Convention on Human Rights (ECHR) art. 8, which includes a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being, and quality of life. Akkermans and Fox O’Mahony examine the Grand Chamber’s treatment of art.8 ECHR, “apply[ing] the analytical toolkit of Resilient Property Theory (RPT) to consider the implications of…KlimaSeniorinnen for property law.” (P. 380.)
The importance of RPT, a concept first developed by Lorna Fox O’Mahony and Marc Roark (in Squatting and the State: Resilient Property in an Age of Crisis (2022)), and applied by Akkermans and Fox O’Mahony in this article, lies in its attempt to go beyond the merely transactional dimension of property to tackle “wicked” property problems (such as climate change) and, in doing so, to consider the implications of property law and policy for a range of individual (owners, tenants, mortgagors, trespassers, citizens), aggregated (neighbourhoods, associations, communities), and institutional (public/state, private/market, governmental and legal institutions) stakeholders. (P. 380.)
The “needs and interests of these stakeholders interact across three distinct registers of scale: the rhetorical or narrative scale on which the nature of property and property values are debated and on which political statements about the nature of property rights are made; the jurisdictional scale of property rights and entitlements, which is embedded in the wider democratic legal order; and the material scale of property—and specifically land—as a physical, material resource. These registers interact with “property” and “time”, defining and shaping how we interact with land resources.” (Pp. 380-81, footnotes omitted.)
Applying RPT to land law reveals not one lens alone, but three distinct lenses through which we must view property: contextual, methodological, and legal. Each is widened when viewed from the perspective of climate change. (Pp. 381-92.)
As any first year law student knows, because they are told as much, property is not a thing but an abstract sets of rights. Akkermans and Fox O’Mahony argue that climate change reveals an incongruity between the abstractions we are taught, and the reality of the material scale—the object of property, in this case land—to which property applies; and RPT widens this contextual lens so that property can encompass both scales.
Abstract property rights attempt to avoid the physical materiality of the object of property and, as such, allows the law to avoid the very real and detrimental impact of decisions made using those abstract rights—climate change—for the sustainability of the land resource. (Pp. 381-85.) Law, then, “masks the complex, dynamic and networked nature of peopled landscapes, allowing landholders to disown the adverse consequences of their proprietorship.” (P. 384, citing Nicole Graham.)
The methodological lens focusses on the subjects of property, those who are affected by the outcomes for the land of dematerialisation. Property, through its abstractions, discounts the lives of those who might live in or be affected by resource exploitation, and the lives of those yet to be born. (P. 385.)
Social, political, economic, and environmental change wrought by property means that there are an entire range of individual and networked stakeholders that the abstract conception of property cannot “see.” Such a narrow focus, concerned only with those who are parties to traditional transactional concerns of property law, at best misses, at worst wilfully ignores the reality of so many who are affected by the implications of climate change, both here and yet to come. (Pp. 387-88.)
Finally, the view of property allowed by the widened contextual and methodological lenses requires a final widening of the legal lens. Akkermans and Fox O’Mahony argue that “the acceleration of climate harms requires adaptation and a transition from narrow perspectives focused on “property rights” to property governance within a sustainable legal system, and a sustainable material world.” (P. 388.) This deploys the ‘resilience’ in RPT: “resilient systems have the adaptive capacity to remain in a functional state; to avoid “tipping” into an altered state, by maintaining equilibrium in the face of challenges or crises.” (P. 388, footnotes omitted) “A stable land law system”, in other words, “is not one that does not change, but one that can adapt to change.” (P. 389.)
For Akkermans and Fox O’Mahony, the legal change required of a resilient system of property means “prioritising: (1) adaptive goals that aim for multiple forms of resilience; (2) an adaptive system structure that is polycentric, multimodal and multi-scalar; (3) methods of adaptation and context-regarding flexibility; and (4) iterative processes with feedback loops and accountability mechanisms.” (P. 390.)
Akkermans and O’Mahony reveal the potential of property, both as law and as scholarship. As a matter of law, using RPT, we see property through the widened lenses of context—to see that property is not mere abstraction, but material and physical reality—methodology—having implications not only for the parties to property transactions, but also for those affected, physically and temporally, by transactions—and law—change and adaptation built through resilience. As a matter of scholarship, the three lenses, used in conjunction to view the implications of climate change for property law, show that far from being fragile, property is resilient, capable of being not only the source of, but also the innovative solution to wicked problems.
