Castelló (2022) on Aussie Wild Animals

Pablo P. Castelló, “A Strategic Proposal for Legally Protecting Wild Animals.” Journal of International Wildlife Law & Policy 25(2): 103-134, 2022.

• This article looks at how wild animal interests might be protected under the Australian Constitution. Its argument builds on Donaldson and Kymlicka: animals need rights to self-determination, individually and communally. So Castelló takes as a starting point the notion that wild animals have interests and deserve some fundamental rights.

• One advantage of providing fundamental rights is that it makes backsliding, retreating on the rights of wild animals, more difficult.

• The approach here is intended to pragmatic, keeping (Australian) political feasibility in view.

• Currently, a division between wild and domesticated animals reaches Aussie common law through roots in Roman law: wild animals are things that can become some human’s property through appropriation.

• “…members of endangered species have strong protections under Australian law [p. 107].” Many wild animals lack similar protection.

• Currently, wild animals can be hunted, can be domesticated (into human property) and/or confined, or be killed if they are viewed as threats.

• In the author's proposal, individual wild anymals and their communities will have rights to political representation; to not be property; to territory; and to self-determination. They, and their ecosystems, are protected against human harm and activities.

• Self-determination is meaningless without territory (p. 109), and anymals need habitats protected against human-induced harms to survive.

• The proposed self-determination is internal: anymals do not have the right to secede, for instance. A similar form of internal sovereignty currently applies to some Australian indigenous peoples.

• Self-determination precludes being someone’s property. Hunting, capturing, or domestication are inconsistent with a right not to be property; nor could wild animals be sold. 

• The right to political representation requires some humans to serve as proxies.

• Castelló proposes a new category, “legal animalhood."

• Horses were brought to Australia in 1788; wild horses can trample the individuals and habitats of smaller species. Should the horses be culled to protect other anymal habitat? Better to nudge the horses away – and such nudges (as opposed to killing) are required to respect the self-determination of wild horses.

• To be a wild animal with the rights suggested, you must live in a Wild Animal Territory and participate in a Wild Ecosystem. Much of Australia (40%) would qualify as a Wild Animal Territory – and such a designation would hold minimal impacts on humans, as these areas are thinly populated by humans.

• Even now, the existing category of “Territory” in Aussie law does not require that inhabitants receive parliamentary representation. 

• Territories in which there is an element of sovereignty for indigenous peoples would not be required to become Wild Animal Territories.

• An animal who wanders out of a Wild Animal Territory would lose their status of legal animalhood.

• Fishing is popular in Australia, so for practical reasons, marine animals would not benefit at first from legal animalhood.

• In some property rights alternatives to "legal animalhood," the rights are easily infringed, and hunting, for instance, would still be permitted -- but not for wild animals within their territories under the author's proposal.

• Alternative legal approaches to ecosystems do little to protect the interests of individual anymals – they are not centered on self-determination.

• The “new conservation,” an econ-style environmental approach, takes it as a given that anymals are resources to be consumed or managed by humans.

• Castelló's approach, however, does share the spirit of the ecocentrist vision of Nature Needs Half.