Circulation of legal precedents and global debate

The project focuses specifically on litigations. Ethnographic fieldwork is conducted mainly in India, Colombia, Italy, the UK, the USA, Nepal, Sri Lanka, and China. We undertake in-depth interviews with local actors and legal experts, and work on archives and documentation including newspaper archives.

The combination of press articles, court records and narratives with the ethnography of courts and of court proceedings helps to contextualise the case observed in court from a historical and cultural point of view. It also helps to integrate the ‘rule-oriented’ filter of court interactions with the multiple discourses held by the protagonists of the case outside the courtroom.

Legal and cultural ideas travel around the globe not only via legal precedents, which connect animal and environmental cases together as well as transnationally, but also – even more widely and more quickly – via the press. National and international media capture the public attention and may, in turn, become a source of inspiration for both activists and legal professionals. For instance, the recognition by New Zealand’s legislation of Whanganui River as a legal person inspired a judgment on the river Ganges in India, which in turn is quoted by Steven Wise in the USA when arguing for legal status for chimpanzees and by the Colombian constitutional court with regard to the Atrato River – the attribution of ‘legal personhood’ being a common strategy for the protection of animals as well as the environment. The very nature of the issues addressed and the international scope of the debates make it crucial to combine localised case studies with a comparative perspective – this approach lies at the heart of the project.

Legal protection of animals and of the environment

Some of the cases studied by the team focus on how the notion of rights is used in court to defend animals and the environment without transforming them from ‘object or thing susceptible of ownership’ to legal persons. In the case of animals, the idea that some species should be given rights, which dates back to the 18th century (Bentham), takes on crucial importance in the current philosophical and legal debate. Initially advocated to oppose cruelty and to ensure animals’ basic well-being, such rights are now understood more broadly as the right to life, to dignity, to live in a natural habitat. Some cases studied by the team focus on how these arguments are used in court to defend animals and the environment.

In Italy, Vanessa Manceron, Giovanni Gugg and Isacco Turina work on cases of animal welfare, which is a relatively recent and historically less entrenched issue than in northern Europe. It is backed by NGOs, which may implement a broader programme of reforming Italian society by promoting the animal cause according to a political, legislative and legal agenda. It gives rise to thorny issues, since a large part of related disputes are linked to criminal organisations (‘ecomafias’, or ‘zoomafias’). While some activists favour direct action, others invest in institutions, with a reformist agenda of gradual improvement of animals’ legal protection and living conditions. The study focuses on the latter, in particular on NGOs which, through a network of committed lawyers, bring cases before the court to stop illegal acts such as dog fighting, wildlife smuggling, poaching, cattle theft, illegal betting on horse races, and to uphold the interests of animals.

In India, Daniela Berti studies the court’s handling of cases involving the presence of wild animals in town or those kept in captivity: leopards entering urban areas; monkeys living in buildings; birds kept in cages. She focuses on the stories behind these cases, the arguments used by the parties, and the issues these cases raise – of ownership, responsibility, dignity, cruelty, morality and different kinds of ‘rights’. The issue of defining wildlife in relation to domestication will also be addressed.

In Nepal, Chiara Letizia works on Public Interest Litigations against the mass animal sacrifice and on the rules governing animal transportation and on how these cases prompt judges to discuss the question of animal welfare and the entangled environmental issues. Mara Benadusi‘s research deals with cases involving elephants in zoos, animal orphanages, temples, and animals poached and sold in the Sri Lankan tourist industry. Animal rights organisations worldwide and their local branches run a long-standing campaign involving court action to defend elephants’ rights and to ensure their well-being. In China Stéphane Gros addresses the way national discourses about ‘national minorities’ and their right to cultural and religious differences intersect with transnational discourses about indigeneity and environmental protection in the context of the rapid expansion of protected natural areas.

The role of scientific experts in court cases

Issues concerning welfare, rights or conservation are argued in court by referring to scientific arguments or experts’ assessments. Science and expertise can be used to show, for example, that individual animals of a particular species share the same cognitive or moral qualities as humans in order to convince a judge to grant them legal personhood.

Scientific works and expert reports are part and parcel of court files and are used by petitioners, lawyers and judges in combination with principles of law, legal reasoning, and constitutional principles – the legal battle is indeed a battle of contradictory expertise. Court decisions often rely largely on the lawyers’ ability to discredit experts of the opposing party.

Expert advice is required for identifying species of wild animals entitled to some form of legal protection. Anthony Good studies the case of the Scottish wildcat in the United Kingdom, a protected animal. However, several recent court cases have opposed development projects in their alleged habitats. The cases themselves are relatively straightforward from a purely legal perspective but their interest lies in the disputes (among and between scientists and activists) over the definition of a ‘wildcat’, given that, to some extent, they have interbred with feral domestic cats. The question then is: what is the force of legal protection when it is unclear which animals are entitled to that protection? (similar questions have been raised elsewhere, for example regarding the dingo in Australia.)

Daniela Berti follows the activity of the Wildlife Institute of India, a public scientific institution which is regularly asked to provide scientific reports based on their activities of monitoring and foreseeing the effects that the translocation of big cats may have on the animals’ stress, anxiety and eventually on their reproduction – reports which will be used in court in favour of or against a specific animal translocation project. Daniela will look at how the issue of species protection and of predicting species’ survival is handled at a scientific level by researchers of the institute – which questions do they address, which technical tools do they use, which kinds of data do they produce and how they are used as arguments in court.

In Colombia Sandrine Revet, Carolina Angel Botero, Pierre Brunet analyse the way animals – fish, turtles, frogs, etc. – are used as sentinels and as ‘proof’ for measuring the state of the Atrato River, both in the judicial documents leading to sentence T-622 and in the local application of this decision by scientists, ‘Guardians of the Atrato’, and inhabitants. The study will engage with organizations that make up the ‘Experts Panel’ that the Court set up to support the Office of the Attorney General in supervising the implementation of orders, and will analyse their work to constitute legally admissible evidence that makes it possible to translate the situation of the Atrato as a system of interrelationships into legal terms. Vanessa Manceron, Giovanni Gugg and Isacco Turina analyse the role of experts in the legal actions brought before the courts by Legambiente as well as by the lawyers group in Naples.

Human-Wildlife Conflict

What is put forward in some cases is not the moral or ethical question of preventing animal suffering or of giving them rights but the idea (also moral in some way) of saving endangered species – either because of the dwindling number of individuals or because of their shrinking natural habitat.

In these cases, animals and the environment are regarded as interconnected and the former may be strategically put forward in court as an argument to protect the latter.

In India Daniela Berti and Ritwick Dutta work on various cases filed at the National Green Tribunal, a higher court made up of both judges and scientific experts, which handles cases related to the environment and wildlife-related issues. In these cases, protected areas and species are threatened by the implementation of development projects in areas that include for example a corridor for tigers or elephants, or a breeding ground for migratory birds. These court cases raise questions about the management of protected areas and species, and lend themselves to being studied not only in the context of the courts but also by taking into account other actors involved in the decision-making process such as scientific experts, forest rangers, politicians and private companies.

Courts may also be called upon to rule on cases where animal protection is at odds with the protection of human property or life. This particularly happens when the territory where a species lives provides insufficient resources and some animals begin to venture into urban areas. In these cases animals go from being ‘victims’, whose territories or corridors have to be defended, to being a ‘danger’ and having to be captured, displaced or eliminated.

In Nepal, Joëlle Smadja analyses the situation of villagers who inhabited areas now given over to National Parks and who have been driven away; whose crops and cattle are destroyed by wildlife; and who are harassed by foresters and the army who shoot anyone entering a park. Joëlle works on these issues by comparing her previous work in Kaziranga National Park in Assam with a study in Chitwan National Park in Nepal, by focusing on how courts deal with these issues and on the role NGOs play in such cases.

Mara Benadusi works on the conservation and legal challenges stemming from the development of national parks in Sri Lanka. Conflicts near wildlife sanctuaries and parks have increased dramatically over the last decades, resulting in a growing number of court cases, with farmers denouncing dangers caused by elephants, and animal rights’ activists and national park representatives denouncing the illegal killing of elephants. Benadusi’s study bears on how local practices of cohabitation between humans and elephants evolve as a consequence of arguments raised in court.

Attributing legal personhood to the environment and to animals

The idea of considering elements of the environment (rivers, lakes, mountains) as ‘legal persons’ has been recently used as a juridical tool in various cases around the world. A similar movement concerning animals has been initiated by philosophers, lawyers and activists who question the boundary between humans and animals – especially those with superior cognitive abilities – and call for a change in the status of animals from ‘things’, that can be owned, to ‘legal persons’. Preliminary research reveals that the process of attributing legal personhood to nature differs from country to country and sometimes does not have the legal implications that it may appear to have at first glance.

For instance, the Non-Human Rights Project’s request to grant habeas corpus (bodily liberty) to one of his ‘clients’ – the elephant Happy – on the grounds that she passed the mirror test has been repeatedly rejected by U.S. courts, in part on the grounds that animals are not legal persons. In India, on the other hand, a High Court judge declared the entire animal kingdom ‘legal person’ without even clarifying which animals the ruling refers to. Cases therefore need to be studied not only by considering the legal reasoning but by taking into account the specific cultural and juridical context, in order to grasp what the legal categories used in the case exactly mean and what their repercussions are at a juridical and practical level.

Vincent Chapaux focuses on how the notion of habeas corpus has been followed in numerous cases where legal personhood has been requested for animals and for their ‘liberation’ : the case of the chimpanzees Suica (Brazil 2005), Kiko, Tommy, Hercules and Leo (USA 2013), the orangutan Sandra (Argentina 2014), the chimpanzee Cecilia (Argentina 2016), and the spectacled bear Chucho (Colombia 2017). In these cases litigations have a strategic character, with the ultimate aim of contributing to the liberation of all animals beyond particular individuals, of accumulating legal precedents and of establishing fundamental rights for animals.

Daniela Berti analyses how the idea of ‘legal personhood’ has been used in India by FIAPO, an animal rights organisation whose leaders have been directly inspired by the Nonhuman Rights Project set up in the United States by Steven Wise. She compares the arguments and strategies used by these two organizations to defend their cases in court. Daniela also examines how the issue of granting legal personality to rivers and animals has been handled by judges in recent rulings and how such rulings may be perceived differently in India and abroad. 

In Colombia, Sandrine Revet, Pierre Brunet and Carolina Angel Botero, examine the case of the Atrato River, which was granted legal personhood in 2017 by the Colombian Constitutional Court. Sentence T- 622 decided on the ‘acción de tutela’ – legal action for the defence of fundamental rights – taken by the environmental activists’ association Tierra Digna and various local organisations. Sentence T-622 implies several concrete measures (scientific studies on the contamination of the river and the inhabitants, military intervention for the ‘eradication of illegal gold mining’ and ‘reconstruction of cultural and ancestral traditions’). The novelty of this decision resides in the fact that it considers the river as a ‘system of relationships’, not merely as a resource for humans. The Sentence emphasises the interdependency between humans and ‘non-human’ elements in the river basin, in connection with the concept of ‘biocultural rights’. Claire Duboscq will undertake fieldwork in a region between Bogota, where she’ll meet the institutional actors in the jurisprudence studied, and several peripheral areas, where conflicts lead to the personification of rivers – these selected case studies will allow her to apprehend the multiplicity of local actors who contribute to the making of nature’s rights ».