Environmental Law

14/09/2017

Understanding and Enhancing the Contribution of International Law to Lion Conservation

As one of the world’s most iconic and charismatic megafauna, the lion, Panthera leo, is a species whose conservation attracts international concern from conservationists and the global public alike. However, lion range and numbers have declined markedly over the last two decades.

In a recent publication in the journal Nature Conservation, two members of the Tilburg Environmental Law Team (Arie Trouwborst and Melissa Lewis) collaborated with biologists and social scientists from the University of Oxford’s Wildlife Conservation Research Unit  (WildCRU) to assess the present and potential future role of international wildlife treaties in lion conservation.

Lionesses, Kruger National Park, South Africa (photo: M. Lewis)

Like other species of large carnivores, lions present a special set of conservation issues from a legal perspective due to their great spatial requirements, elevated human-wildlife conflict potential, and role as both keystone and umbrella species. For these reasons, and because of the transboundary nature of many lion populations and some of their threats, international law plays a distinct role.

Lion conservation has featured prominently on the agendas of certain wildlife treaties – including the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and, more recently, the Convention on the Conservation of Migratory Species of Wild Animals (CMS). In October this year, for instance, Parties to the latter Convention will decide whether to list the lion on one of the CMS’s appendices, and will further consider the adoption of several draft decisions of significance for lions and other African carnivores. Although sometimes less obvious, a range of other treaties also play a role in the endeavor to conserve the world’s remaining lion populations. For instance, 39 of the sites that are currently designated as Wetlands of International Importance under the Ramsar Convention, and 18 of the areas that have been designated as World Heritage Sites under the World Heritage Convention, are of actual or potential significance to lions.  A myriad of regional instruments are also relevant – examples including the African Convention on the Conservation of Nature and Natural Resources, the SADC Protocol on Wildlife Conservation and Law Enforcement, the various treaties establishing transfrontier conservation areas (TFCAs), and even the Bern Convention on the Conservation of European Wildlife and Natural Habitats.

Lion, Kruger National Park, South Africa (photo J. Lewis)

In this paper, we identify not only a substantial body of relevant international wildlife law, but also a significant potential for enhancing these instruments’ contribution to lion conservation. We argue that the time is right to invest in such improvements, and we provide both general and treaty-specific recommendations for doing so. With the 2017 CMS Conference of the Parties fast approaching, the paper’s support for augmenting this Convention’s role in lion conservation is especially noteworthy. The paper concludes that: 

“Given the fragmented collection of treaties which currently apply to lions and the absence of adequate international instruments and/or institutions for lion conservation in at least portions of the species’ range, an important role appears, in principle, to be reserved for the CMS, both in terms of coordination and gap-filling. Listing lions under the Convention would be a logical step in this regard … [and] would both signal the need to develop more elaborate species-specific frameworks for lion conservation and sustainable use and increase the avenues available for achieving this.”

It further provides recommendations for making optimal use of the Ramsar and World Heritage Conventions and TFCA agreements in sites of importance to lions; outlines possibilities for adjusting CITES’ restrictions on the trade in lions and their parts; and emphasizes the importance of maximizing range states’ participation in, and compliance with, wildlife treaties, and of promoting strategies which involve the local people who live alongside lions.

Arie Trouwborst, Melissa Lewis, Dawn Burnham, Amy Dickman, Amy Hinks, Timothy Hodgetts, Ewan A. Macdonald & David W. Macdonald (2017) “International law and lions (Panthera leo): understanding and improving the contribution of wildlife treaties to the conservation and sustainable use of an iconic carnivore“. Nature Conservation 21: 83-128.

07/09/2017

Movie Review: Unlocking the Cage

(Student, Tilburg University)

THE NON-HUMAN RIGHTS PROJECT’S ATTEMPTS TO GRANT LEGAL PERSONHOOD TO CHIMPANZEES: HEROIC OR ABSURD?

Abstract

The DNA of a chimpanzee matches for nearly 98% with the DNA of a human. Does this mean that they should be entitled to the same rights? As of today the main question to determine whether you have a right or not is: are you a human being? In Unlocking the Cage D.A. Pennebaker and documentary veteran Chris Hegedus follow Steven Wise in his extraordinary challenge to break down the legal wall that separates animals from human beings. His team’s, the Nonhuman Rights Project, objective is to transform an animal, more specific ‘’non-human’’ animals, e.g. chimpanzees, whales, elephants, from a ‘’thing’’ with no rights to a person that has legal protection and legal personhood. Wise and his team are making history by filing the first lawsuits to achieve this goal.

Introduction

The movie tells a story about the Non-human Rights Project (NhRP). This is an animal rights organization that tries to establish legal personhood for certain ‘’non-human’’ animals.  These non-human animals are for example apes, elephants and cetaceans etc. It is possibly the only organization in the United States that puts time into achieving actual legal rights for animals. Their goal is to achieve a change in the legal status of non-human animals from just ‘animals’ into a legal person who possesses (fundamental) legal rights (e.g. the integrity of the body or bodily liberty). They try to achieve their goals through litigation, advocacy and education. Besides the already mentioned goal of changing the common law status of non-human animals, their goals are furthermore to consider other qualities that may be sufficient for recognition of nonhuman animals’ legal personhood and fundamental rights: inspiration is drawn from evolving standards of morality, scientific discovery, and human experience. The NhRP also develops local, national, and global issue-oriented grassroots campaigns to promote recognition of nonhuman animals as beings worthy of moral and legal consideration that have their own inherent interests in freedom from captivity, participation in a community of other members of their species, and the protection of their natural habitats. The organization aims to build a broad-based coalition of organizations and individuals to secure legally recognized fundamental rights for nonhuman animals and to foster understanding of the social, historical, political, and legal justice of their arguments and the scientific discovery of other species’ cognitive and emotional complexity that informs them.

The organization consists of a diverse team but what they have in common is an affection for law and animals. The team includes animal rights lawyers, legal experts and law students who work on a voluntary basis. Steven Wise is the organization’s “leader”. Wise is a respected teacher and author in the field of animal rights and animal jurisprudence. His subject ‘’Animal Rights Law’’ is taught at various universities across the United States.

The movie follows the ambitious efforts of Wise and his team in the period 2013 – 2015. The team tries to make history by going to the courtroom, attempting to improve animals’ legal position and give them rights. Their first step is the establishment of these rights for apes, elephants and cetaceans and after that other animals should follow. These animals were chosen because they have all been studied and it is determined that they have highly developed cognitive skills and awareness of themselves. Wise calls this a ‘’theory of mind’’.

Wise sets out to prove that cognitively complex animals (like the animals mentioned above) do have the capacity for limited personhood rights. Pennebaker and Hegedus have been following Wise’s and his teams’ historical battle for two years in order to understand what it means to be autonomous and whether sentient beings should have the right of freedom.

In the movie we see Wise and his team going around the state of New York in order to look for apes and see in which circumstances they live. Some apes were held in sanctuaries where they try to communicate with their human keepers. Other apes on the other hand, are being kept solely for the sake of being kept. Wise’s team builds court cases around those latter non-human animals (apes in this matter). As a starting point, Wise selects individual animals (Merlin and Koko for example) and his main goal is to establish legal personhood for these particular animals. His team takes action step by step in order to achieve this goal. The question is how fast this will happen. ‘’This is the end of the beginning’’, to quote Wise at the end of the movie.

The movie

Since the past decades, the fight for animal rights has become a growing movement. It is a movement with many fronts and expressions, from principled vegetarianism (but not exclusively) to the denouncement of animal experimentations. Unlocking the Cage focusses on the American front and on one intrepid animal advocate.

The movie revolves around the law suits lodged by the NhRP. Tommy is a chimpanzee who was isolated in a garage. Wise and his team demanded in the lawsuit that Tommy would be released and transferred to a Florida sanctuary. The lower judge was impressed by Wise’s arguments and directed the lawsuit to the Appellate Court in Albany. It was in 2014, in that case, that judges openly discussed the matter regarding legal personhood of non-human animals. Nevertheless, the results were unfavorable: Tommy was moved to a zoo and remained in deplorable conditions.

The next case involved a chimpanzee named Kiko. This case evolved in a different way compared to Tommy’s case. This case was a great showcase of the legal disagreement that exists on the question whether to enlarge the legal system by attributing legal rights to non-human animals or not. The case was rejected in first instance, but an appeal is planned before the appeals court.

The chimpanzees in the final case, Hercules and Leo, were used for research at New York’s State University. This was the case that truly challenged the court. Wise argued against the New York’s assistant attorney general by making a plea that made judge Barbara Jaffe question whether a chimpanzee should not be deemed a person for the limited purpose of permitting the writ of habeas corpus.

My opinion

(Ismet Öncü)

In the past it was assumed that legal persons were individual human beings only. However, the personhood of corporations has also been affirmed. The personhood of corporations is routinely used as a liability and litigation tool: the question in this matter is whether the definition of “personhood” can also be expanded to include non-human animals? Can we compare the personhood of a corporation or a human’s personhood to the animal personhood? The former two can result into their own liability (and thus can results into liability for damages). This is not the case with animals. They are not entirely free from harm and exploitation.

While fervent animal rights advocates have argued for personhood for animals, the critics denounce the assertion as absurd. There has been some skepticism regarding this matter. However, the animal rights movement has slowly and zealously been inching for a while. In the world of animal law Wise is a known person and his achievements are inspiring. Below I will discuss my opinion on the pros and cons of the movie.

Pros

I can really recommend this movie for animal lovers, especially for those who are in law school. The movie is well paced and very informative. Unlocking the Cage has started the conversation about animal rights and since this movie more and more people started to listen. Speciesism is causing the destruction of the planet earth and this movie gives insight into that matter. Unlocking the Cage takes the next step in human evolution.

The movie was praised by national (American) and international media. They stated that the movie was a ‘’heroic courtroom thriller’’.

In my personal opinion the movie was a real eye-opener into a matter that was unknown territory for me. It is inspiring to see how passionate and with so much conviction Wise and his teams are committed to reaching their goals.

Contras

On the other hand, some of Wise’s viewpoints seem to be counterintuitive. How can an animal with no language or any other form of human culture have standing to seek redress from human institutions? Animals cannot start a legal process; thus it must be done on behalf of these animals. But do we have adequate animal advocates who are willing to do that? This is still a matter that remains unclear. Beside these procedural issues, practical concerns need to be addressed too. In the courtrooms, for instance, will these ‘’animal cases’’ be judges in front of the same judges where people start their lawsuits? Under which jurisdiction? Civil? Criminal? Will we need a separate jurisdiction within our legal system in order to deal with these animal cases? One judge’s decision on whether  a chimpanzee can have personhood ran over 30 pages and that says a lot. There are a lot of question that still need to be answered. Nevertheless, this does not devaluate the efforts of Wise and his team to bring awareness to the (legal) position of non-human animals.

Furthermore, I found that some of Wise’s arguments are stronger than others. He states that apes, elephants and cetaceans could be seen as ‘’legal persons’’ based on their ‘’theory of mind’’ and other human attributes. But is this not still a matter of scientific debate? It could be possible, in my opinion, to deny that these non-human animals Wise selects, are smart animals. It seems an arbitrary line to draw. Moreover, his intimation to a reporter that a chimp’s captor should move into a cage, in order to see if he likes being in there, seems a bit foolish to say the least. We, humans, do also not like to inhabit underground tunnels but this does not mean that rats are not perfectly happy there.

The goal of this movie is to create awareness but in my opinion Wise’s accomplishments disappoint at this point (apart from the moral victories). Wise and his team have not achieved much in those 2-3 years the camera crew of Hegedus and Pennebaker followed them. The things they do accomplish had already been covered in the news. This makes the movie feel kind of redundant. Most of the time the viewer looks at Wise’s appearances in various TV shows (i.g. The Colbert Report). Those parts are not trailblazing. The most interesting parts is the footage which provides a look into the New York State Supreme Court, where we can follow Wise arguing for his petition. In my opinion this back fired a bit, because the judges were asking genuinely probing questions and that made the whole matter seem even murkier. In short, this movie did not (yet) achieve much in the interesting matter of personhood of non-human animals.

Another question is whether there is a taxonomic reason for this matter to be made into a movie.  Some biologists have argued that there is no legitimate taxonomic reason to consider humans and apes as part of the same gen. The discussion on this subject has not yet ended in literature.^[1] This matter goes back to Dawkin (2004) who popularized the notion that we (i.e., human beings) are the ‘’third chimpanzee’’. However, it is still not clear if human beings are great apes or not. This is important for our conceptualization of a human being. The scientific evidence in support of the point of view that we are great apes lies in anatomical and morphological arguments. Marks (2009) refers in this matter to the common ‘’Y5’’ pattern, a rotating shoulder, fused caudal vertebrae and a large and complex brain. On the other hand Dunbar (2008) claims that human beings differ from great apes. The critical aspect in his point of view lies in our imagination (e.g. religion, story-telling). In my opinion humans can be considered as humans and great apes are our closest extant relatives. It is our own ego that insists on dividing the line between humans and apes.

Conclusion

Overall Unlocking the Cage remains a great movie which gave me insight into the matter of animal legal rights. Unless the fact that I gave more cons than pros, I can really recommend (and I already did) to anyone who has an affection for law and animals combined. This movie captures a shift in our culture, as the public and juridical system show receptiveness to Steven Wise and his team’s impassioned arguments. Unlocking the cage is an intimate look at a lawsuit that is unprecedented and that could forever change our legal systems, if additional specifications, in my respect, are made.

[1] One may refer to Dawkins, R., The Ancestor’s Tale (2004). Bouston: Houghton Mufflin. Dunbar, R., Why Humans Aren’t Just Great Apes (2008). Ethnology and Anthropology. 3:15-33. Marks, J., Why Be Against Darwin? Creationism, Racism, and the roots of Anthropology. Yearbook of Physical Anthropology, 55: 95-104.