An Ecofeminist Approach to EU Biodiversity Law

This blogpost aims at briefly addressing the issue of hunting as it is regulated in EU biodiversity law (mainly the Habitats Directive) using legal ecofeminism as method of analysis. It starts from a reflection on ecofeminism as related to hunting, then argues that EU law, including the EU Charter of fundamental rights of the EU (EU Charter FR), is inherently anthropocentric, and highlights the ambiguities of EU biodiversity law – only partly overcome by the most recent Restoration of Nature Regulation – with regard to the system of derogations. By referring to a judgment rendered by the Court of Justice of the EU (CJEU) on the conservation of wolves in 2019, which applied the precautionary principle to non-human animals for the first time, this post encourages an ecofeminist legal reading of EU biodiversity law in an attempt to eradicate patterns of discrimination and domination present both intra and inter-species and to “learn” how to legally consider non-human animals as part of an environment of which we all belong. Ecofeminism can add a valuable dimension to EU biodiversity law.

Ecofeminism, hunting and the law

Hunting has been already analysed from an ecofeminist perspective (see for example here, here, here and here), but rarely from a legal ecofeminist point of view. Using a feminist method means to read international and EU law in a way that disrupts traditional categories of law and binaries that are construed in an anthropocentric way. This can help unravel patterns of discrimination and power imbalances tolerated and reproduced by States.

Other interesting approaches have developed criticism against the structural patterns of oppression in the legal systems and shed light on controversial aspects of the mainstream international law. However, the feminist, and the ecofeminist method more specifically, is considered here as a further potential perspective that adds the layers of intersectionality and of nature to the analysis of schemes of oppression and subordination.

The premise on which the ecofeminist thought is founded is that patterns of oppression and domination are not only intra-species but also inter-species, in the relation between humans and the nature (Grear 2015, p. 241). As Lisa Kemmerer pointed out in a recent article, ecofeminist scholars observed that “false value dualisms in the Greco-diaspora “other” and denigrate individuals and nature, leading to their exploitation, exposing a root cause of interfacing oppressions.” For example, the idea of us (humans) vs. wild life, sacrificing the latter when human interests are at stake, is based on this premise. She also underscores the connections between sexism and speciesism, which explain (though not justify) the narrative of hunting as a “sexual pleasure” and “advertisements/images that juxtapose the bodies of young (fertile) women with those of female farmed anymals (widely viewed as available for reproductive exploitation).” Women, especially those at the intersection of different grounds of discrimination, are “disembodied, objectified, sexualized, anymalized. As a result, though humans almost invariably state that they value life and feel strongly about protecting the lives of the vulnerable and the innocent, they tolerate and often verbally defend hunting.”

Ecofeminism is extremely powerful in disrupting and unveiling the falsity of common “narratives” and “justifications/rationalizations” such as, Kemmerer mentions, “that hunting is a treasured and important (and therefore protected) tradition/sport, that hunting funds the protection of ecosystems/anymals, and that hunting is good for anymals.” Ecofeminism, that in the past was accused of essentialism and of being “Global North”-oriented, is actually a powerful method of legal analysis that can (and must) embrace de-colonial concerns on the role of hunting in indigenous communities (see Gaard). I have tried to demonstrate how ecofeminism expresses its own potential in several contexts, especially in relation to environmental law (here), and in a forthcoming book dedicated to the phenomenon of “environmental chronic emergencies.” In this post, legal ecofeminism will be applied with regard to EU biodiversity law.

EU law as an inherently anthropocentric system

EU law, in particular EU environmental law, is inherently anthropocentric (see, in that respect, Jones using a posthuman feminist approach). It could be argued that every law is anthropocentric by virtue of being human-made. However, the issue lies not only in who is making the law, but in how the law reproduces discrimination and schemes of oppression in our societies and inter-species. For example, while Article 13 of the Treaty on the Functioning of the European Union recognizes animals as sentient beings and underscores the importance of animal welfare, this principle is, in practice, only minimally reflected in EU animal husbandry. The reality is that current husbandry conditions in European stables remain far from species-appropriate, despite the existence of some welfare provisions (see here in that respect). Animal welfare is mainly associated to animal husbandry, even though, in a 2021 judgment on the application of the Birds Directive, the CJEU argued that animal welfare considerations are relevant when assessing the admissibility of derogations under the latter legal instrument.

Turning to the EU Charter FR, Article 37 requires that “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.” But does environmental protection include non-human animals? The concept of sustainable development also shows several weaknesses, and, in its original conception, clearly excluded non-human animals (however, see here, acknowledging the concept of animal welfare). A feminist analysis, which develops ecological and postcolonial concerns, highlights the fact that the concept of sustainable development is anthropocentric and androcentric, it does not affect the dynamics of power – among men, women, and gender non-conforming people; between human and non-human; between developed and developing countries – and encourages a model of growth that perpetuates structural inequalities (Wilkinson Cross 2023). Criticism of sustainable development from an ecofeminist perspective exposes the failure to see the interconnections between systems of power both intra and inter-species.

Moving to secondary law, and only limiting our scope to biodiversity law, the Habitats Directive contains prohibitions on killing or capturing an animal, as well as a prohibition on their disturbance during their life cycle (Article 12). However, despite acknowledging that the “threatened habitats and species form part of the Community’s natural heritage,” the Habitats Directive provides for a system of derogations that makes economic and human interests prevail, under certain (narrowly interpreted) circumstances (Article 16). The Directive is based on annexes, that provide for different levels of protection. Species under Annex V are considered as less threatened than those under Annex IV. As it was interestingly argued, “for Annex V animals, the taking in the wild of specimens is allowed, as long as their exploitation is compatible with a favourable conservation status,” and the human interest of sustainable use of natural resources is the one that guides the choice. In other words, individuals belonging to the species under Annex V “can be killed or captured as long as their taking remains compatible with sustainable exploitation” (also here).

The cultural aspect of hunting inevitably emerges from a system of law that conceptualises an anthropocentric hierarchy among animals – those deemed worthy of protection from hunting (whales and seals are emblematic cases in that respect), and those that can be sacrificed on the altar of sustainability (such as wolves). Also, the Nature Restoration Regulation, which marks an important shift from conservation to restoration of habitats, still allows for derogations and misses to acknowledge human responsibility for climate change, allowing for derogations in case of “unavoidable habitat transformations which are directly caused by climate change” (Article 4.14).

The role of the CJEU

Moving beyond anthropocentrism

An author strongly encouraged the incorporation of feminist and ecological concerns into a “more inclusive definition of sustainability that has the potential to address more completely the interrelationships between social equity and environmental destruction.” She identified some conditions of the so-called “feminist sustainability,” including “an ethical perspective that is based on solidarity, reciprocity, and non-hierarchical and non-violent relationships among and within human societies and between humans, non-humans, and the ecosystem.” In the case of hunting, an ecofeminist legal approach avoids choosing sides – either with the wolves or with“us” humans, for example – but encourages a policy of listening that allows different interests to be reconciled, giving a voice to those who have no voice on the legal level, including non-human animals and marginalised groups within the communities that belong to the affected habitats.

An ecofeminist method does not found its reasoning on numbers – for example, the idea that an increase in a species’ population automatically justifies authorising hunters to kill – but rather reflects on how certain practices are justified for pure economic interests without applying consolidated principles such as the precautionary one to the choice of viable alternatives and before deciding for a reduction of the level of protection of a certain species.

There are different ways to protect non-human animals, many of which have been brilliantly explained in several articles (for example rights of nature as a response to failing protection) and in the EU Charter on Rights of Nature. To start with, animal rights, or at least (even though this would not be sufficient) animal welfare, should be included in the EU Charter FR. This would represent a groundbreaking step forward to the recognition of animal rights as fundamental values of the EU system.

What an ecofeminist method could help with, and I hope to have made a tiny little contribution in that respect, is to realise the interconnections existing between layers of oppression and domination intra and inter-species, and acknowledge the contribution of humans to the deterioration of biodiversity and ecosystems which is at the heart of the problem. If we are discussing levels of conservation of the so-called “wild fauna”, it is because humans have been destroying the delicate equilibrium among the elements of the environment, to which human animals belong too. Humans tend to forget that we are part of, if not the main cause of the problem, but as lawyers we need to work towards a paradigmatic shift in the way we practice and teach law, including EU law.