风景权：保护风景利益与实现景观正义的基石

The Right to Landscape: Cornerstone of Protecting Landscape Interests and Achieving Landscape Justice

关键词:  风景园林  风景权  风景利益  景观正义  风景法制  景观治理

Key words:  landscape architecture  right to landscape  landscape interests  landscape justice  landscape legislation  landscape governance

摘要:

风景权是指公民在优美风景中享受环境品质的权利，这一权利正在逐步获得世界各国的认可并通过法律制度确立，成为保障国民健康与人地关系和谐的重要基石。首先，梳理了风景权理论发展的理论源流：环境权理论中将风景权作为其子权利；基于景观正义理论，主张将风景权作为基本人权。其次，分析了风景权的基本概念与权利要素，从风景利益和风景权利两方面辨析了风景权的基本属性，认为风景权是对环境权概念的超越，是保护风景公共利益的新型权利，应当视为一种人权，属于第三代人权范畴。最后，分析了风景权的立法保护与司法救济，主张建立以风景权理论为核心的风景法制和景观正义途径。

Abstract:

Landscape resources integrate ecological, aesthetic, and cultural values. China's scenic areas and parks partially meet public demand, but the lack of a rights-based framework leads to recurring infringements, exemplified by commercial "landscape enclosure". The Right to Landscape (RTL) emerges as a pivotal interdisciplinary concept bridging environmental law, human rights protection, and landscape governance, serving as both a theoretical foundation and practical mechanism to safeguard public landscape interests and advance landscape justice. The theoretical foundations of RTL derive from two complementary traditions. First, as an extension of environmental rights theory, it transcends conventional health-focused protections to encompass aesthetic and spiritual well-being. The theory of environmental rights takes RTL as its sub-rights. Second, informed by landscape justice paradigms, it reconceptualizes landscapes as sociopolitical constructs shaped by power dynamics. Landscapes are recognized as intrinsically connected to emotional nourishment and cultural identity, emphasizing their nature as products of social negotiation rather than merely neutral backdrops. This perspective advocates democratic participation in landscape decision-making and equitable distribution of landscape-related benefits. Although still evolving, this dual theoretical foundation, which combines environmental rights with landscape justice, provides a robust framework for conceptual advancement. RTL represents a conceptual advancement beyond traditional environmental rights, serving as a novel right for safeguarding public landscape interests. This study defines RTL as citizens' non-exclusive entitlement to environmental quality, comprising both substantive rights and procedural rights. RTL demonstrates dual characteristics: it functions as a social right protecting collective landscape interests, while simultaneously qualifying as a third-generation human right emphasizing communal stewardshipresponsibilities. This duality highlights the interdependence between individual enjoyment and collective accountability in landscape governance. Comparative international studies reveal diverse RTL protection models. The European Landscape Convention (2000) recognizes the multiple values of landscapes and the legitimacy of RTL at the regional level, requiring broad stakeholder participation in landscape planning and management. The United Kingdom's "right to access" system balances private property rights with public access to open countryside for recreational use. Japan, while not explicitly defining RTL, protects landscape interests through its Landscape Act (2004) and judicial precedents. In contrast, China's fragmented legal framework creates protection gaps and governance asymmetries in landscape management, which require urgent resolution. China's landscape governance system currently faces substantial constraints, particularly institutional voids and underdeveloped theoretical frameworks, which create formidable barriers to effective implementation. To address these challenges, statutory interventions must prioritize enacting specialized landscape legislation and developing its supporting juridical system. Future priorities should focus on: 1) Integrating RTL into natural resource management systems; 2) Advancing interdisciplinary research to address conceptual and methodological deficiencies; 3) Aligning legal reforms with policy development and public awareness campaigns. Only through such coordinated measures can China achieve equitable landscape access and sustainable resource management, thereby advancing ecological civilization objectives while upholding fundamental human dignity and environmental justice principles.