Habitat loss is one of the main threats to biodiversity. One of the basic solutions to prevent wildlife extinction is to shield natural habitats from destruction and human disturbance. Granting the animals living in the wild the right to habitat may secure animal interest in a habitat like any legal right does.
It is perfectly clear that animals living in the wild depend on nature, requiring vegetation, wetlands, trees, and soils to satisfy their elementary needs. Birds need trees to build nests, deer and brown bears inhabit forests meeting their basic need in shelter and food. Hippos and beavers need wetlands. Large carnivores like leopards, wolves, tigers, and lions also require vast areas to hunt. Thus, wildlife is incredibly diverse and every species is unique, but what they all have in common is their need for a natural environment.
The Threat of Habitat Loss
Habitat loss is the greatest threat facing wildlife. A multitude of the land areas on which animals live has become inadequate for their survival due to a number of factors. In general, between 2000 and 2018, the Species Habitat Index has fallen by 2% (see Figure 1), indicating a strong general downward trend in habitat areas available to animal species. Being permanently decimated, developed, or rendered unsuitable because of climatic change but mostly due to human activity, areas that used to be habitable have vanished. Intensive agriculture, land-use change, mining operations deprive animals living in the wild of their natural homes.
Deforestation for agriculture, ranching, urban development, and logging for timber have significantly affected and threatened the wildlife population. In addition, habitat degradation and loss are also caused by anthropogenic pollution factors like industrial waste, corrosive or reactive materials, dangerous gases. Moreover, the growing human population requires more territory which is extended also at the expense of wildlife areas. Consequently, by threatening the habitats of wild animals, humans jeopardise the very conditions vital for animal life and wellbeing. Thus, in spite of the fact that wild animals live on their own and do not depend on people, they are nonetheless vulnerable to human activity interfering with animal habitats.
Figure 1: Species Habitat Index, WWF (2020) Living Planet Report 2020
The Right to Habitat
The world data on biodiversity and habitat loss looks deplorable. Wildlife populations have already fallen by 69% on average between 1970 and 2018. In order to halt the decline of wild animals and destruction of natural habitats, there is an idea to grant these animals a right to their habitat. Namely, a concept of an animal’s right to its habitat stems from its strong interest in living in that area. Since some wild animals rely directly on their habitats for survival, the disappearance of these territories inevitably threatens their existence. In view of the fact that nonhuman animals currently have no rights at all, their interests, including habitat-related ones, are often overridden by the human self-interest. Recognition of the animal right to habitat means that they have claims difficult to coincide with the human wants, such as logging, draining, dredging, or road building. Therefore, the main idea of the right to habitat is that nonhuman animals are worthy of moral concern for their sakes, and that they can have rights to their habitats as a result.
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Furthermore, it is asserted by scientists that non-human animals, including all mammals and birds as well as many other creatures such as octopuses, are conscious beings. This has triggered a heated debate regarding animal welfare, and the rights and legal personality. In January 2022, Ecuador’s Constitutional Court has recognised that wild animals have rights stating that “the main right of wild animal species is the right to exist and, consequently, not to be extinct for non-natural or anthropic reasons.” Not long before that, the Islamabad High Court in Pakistan had recognised that animals have legal rights and additionally highlighted that “humans as the invasive species have deprived the wildlife native species of its habitat, which was protected under the law. It manifests how humans have undermined the rule of law and threatened the balance created by nature.”
The idea of the right to habitat is not new and has a number of proponents. Doctor John Hadley from the Western Sydney University has proposed to characterise habitat rights of wild animals as a property right. He argues that free-living animals may be considered owners of the natural spaces they inhabit and use. Hadley explains that the property right to habitat may be realised by means of a guardianship system using territorial behaviours to determine the property borders.
The guardianship system can mimic the system of custody over mentally incompetent people, whereby a guardian is a human appointed to assess an immediate or long-term impact of a land-use option on the habitat of the animal concerned. Eligibility criteria for a guardian may vary between regions, but the main requirement is to act in the best interests of wild animals. Furthermore, the scholar proposes to administer animal property rights as a group right assigned to animal members of a specific family group or pack residing in an area instead of an individual animal. Additionally, the proposed property right implementation does not require people to expropriate lands in favour of wildlife. In fact, animal property right will coexist with the property right of a human on the same plot which constitutes an obligation to obtain the guardian’s approval for any habitat modifications.
Another animal property right proponent, Prof. Karen Bradshaw from the Arizona State University, argues that anthropocentric property is the key driver of biodiversity loss, a silent killer of species worldwide. If excluding animals from a legal right to own land is causing their destruction, extending the legal right to own property to wildlife may prove its salvation. In terms of implementation of the property right, Bradshaw proposes to use a system of trust law. Namely, the scholar refers to the existing US trust system, a tool widely used by millions of Americans to manage their homes and assets. The inclusion of animals in the human legal system also requires human representatives to operate on behalf of animals in government and markets. Consequently, human trustees will manage land for the benefit of animal beneficiaries and for the health of the ecosystem as a whole. In practice, each trustee will work under the guidance of a private governance committee that employs best practices. Moreover, all animal trustees will have to obtain a certificate from a group of animal experts, such as conservation biologists and indigenous representatives. That means that, like Hadley, Bradshaw’s theory does not exclude humans from the land possession and implies that the human and animal can both claim the same territory.
A different approach to the habitat right is proposed by Sue Donaldson and Will Kymlicka from Queen’s University who state that wild animals should be considered sovereign over their habitats, since they are capable to pursue their own good, and to shape their own communities. Donaldson and Kymlicka equate animal sovereignty to autonomy-based individual rights for self-determination and use this argument to justify the same approach. Like humans, wild animals need sovereignty to live autonomously. More specifically, Donaldson and Kymlicka’s sovereignty theory rules out the establishment of parks or other spaces where humans retain sovereign authority and act as stewards over animals and nature.
The relationship between sovereign wild animals and people should be equal, and when humans visit animal territory, they should behave as visitors to foreign lands. Hence, only autonomous life for wild animals may protect and preserve them from harmful effects caused by human intervention by way of development, pollution, or even climate change. The scholars argue that, since wild animals have legitimate interests in maintaining their social organisation on their territory, sovereignty is the best solution to defend these interests against vulnerability to injustice. Hence, the past few decades saw a growing interest in wild animals’ habitat issues, and certain ways to the right to habitat implementation have been already suggested.
First and foremost is that the right to habitat concept does not imply the perception of wild animals as a resource for humans. Instead, animals are treated as sentient beings with their own needs and interests to be satisfied on their territory. This approach means that wild territories are preserved not as a natural wealth for the wants of humans, but primarily as vital areas of animal habitation. Moreover, any development or research in a habitat territory may be conducted with due consideration and respect for the wildlife connection to the place. Thus, the acknowledgement of wildlife as sentient beings with their own needs and the necessity for a natural habitat is the core dimension of the habitat right. The other attribute is an access to habitat, which means that wild animals should have an ability for unobstructed and unlimited entry to and presence in their natural habitat area. Wild animals may “use” the habitation territory at their own discretion without any restrictions imposed by people. This implies that the establishment of parks or any regulated zones is not in line with the habitat right concept. Hence, with due account to the characteristics mentioned above, the right to habitat may be defined as ‘a right of species living in the wild to unimpeded enjoyment of the natural habitation territory in its pristine condition’.
As it can be seen to date, various ways to implement the right to habitat theory have been proposed by scholars, such as property right within guardianship system or trust framework. Some of them appear realistic. Undoubtedly, this habitat right shall be granted globally, as in the case with human rights, not to equate human beings and wild animals, but in order to ensure its recognition worldwide. Furthermore, the establishment of an international supervision body acting in the interests of wildlife may be effective in preventing serious and systemic violations of habitat rights.
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