Myanna F. Dellinger, Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy (August 1, 2016). Columbia Journal of Environmental Law Vol. 41, No. 3. Available at SSRN
In “trophy hunting” agreements, wealthy individuals, typically from the Global North, pay locals such as guides or landowners, typically in the Global South, to assist with the planned hunt of rare — if not outright threatened or endangered — species such as lions, polar bears, black rhinoceroses, and giraffes for a fee as a private contractual arrangement. A well-known example is the kill of “Cecil the Lion” in the summer of 2015. American dentist Walter Palmer paid local Zimbabweans $55,000 for their assistance. In other cases, hunters have obtained government permits to kill and import a rare animal. Allegedly, trophy hunts contribute to local economies and can help raise money and awareness for species conservation. However, serious doubt has arisen as to the effectiveness of trophy hunts on society’s ultimate goal — undisputed by trophy hunters — of conserving rare species. The “shadowy subculture” that is trophy hunting is one that attempts to make what is unacceptable to the general public sound acceptable under the guise of euphemisms and questionable facts. While such discussions continue, more and more of the very last few specimens of several rare species are killed for “sport.” As a society, we cannot allow trophy hunting of wild, rare animals to proceed given the uncertainty surrounding the effects of the practice and the reprehensibility of it to society. Under the Precautionary Principle of Law, nations must err on the side of caution and protect the environment where there is solid scientific doubt about the viability of a given practice. This is the case with trophy hunting. At least until there is reliable evidence that trophy hunting truly helps species conservation, the practice should be banned.
Contracts that are considered “unsavory,” “undesirable,” “at war with the interests of society,” or “in conflict with the morals of the time” may be declared unenforceable for reasons of public policy by common law courts regardless of whether or not any underlying legislation provides that the contractual conduct is illegal. Allowing wealthy individuals to kill some of the very last few specimens of rare species for “sport” has become so distasteful to the general public that the time has come for courts to declare such contracts unenforceable for reasons of public policy. This Article demonstrates how this can be accomplished.
The Article also examines the wildlife-protective capabilities of the public trust doctrine and the closely related state ownership of wildlife doctrine. These doctrines add further weight to the contractual argument, but also operate as stand-alone protective doctrines. To be able to present any of these arguments to a court of law, standing is a hurdle, but one that can be overcome. This Article highlights how this might be done.
Restrictions on trophy hunting also finds support in international trade law. A recent “watershed case” issued by the WTO “reveal[s] that the WTO appreciates the growing worldwide awareness that animal welfare is an ethical concern that may in certain cases trump free trade” and, notably, that public morals can and should be considered as well. The case involved an EU regulation that prohibited placing any seal products from any countries on the internal market. The prohibition was passed as a result of the EU Parliament’s careful consideration of the EU citizens’ moral concerns surrounding the slaughter and scientific evidence regarding the inhumane hunting methods used to kill seals. The WTO Panel found that the EU measure fell within the ambit of “public morals” under Article XX(a) of GATT and that the “public morals” in connection with seal hunting is a legitimate objective pursuant to the Agreement on Technical Barriers to Trade. The Panel acknowledged that “animal welfare is an issue of ethical or moral nature” and that “animal welfare is matter of ethical responsibility for human beings in general.” The WTO Appellate Body agreed with the Panel decision. It even found that the measure did not go far enough in achieving its objectives. The explicit recognition of the importance of animal welfare by the WTO is considered unprecedented. Since the WTO has now recognized that animal welfare is an ethical concern to be considered and that the protection of public moral concerns in relation to animal welfare is a legitimate objective that can justify trade restrictions, countries have a broader basis upon which to legislate in this field. Further, there is now clear case precedent for taking animal welfare issues into account in the trade regime as well as in national courts. WTO concerns for the animals themselves could support arguments that the remaining populations suffer from the loss of their alpha leaders as well as potential extinction, which could be argued to be a broader welfare issue. With lions, for example, other males have been known to destroy entire an entire generation of cubs in order to be able to insert their own genes into the gene pool and eradicate the genes of the deceased leaders. That is a harsh anthropogenically induced and, arguably, unnecessary result caused by trophy hunting because it has the above-mentioned negative effects on the gene pool in general. Evolution supports the reproduction by alpha animals. Trophy hunting tinkers with that at the risk of worsening the species. Further, although the WTO has been subject to some warranted criticism of the effects of GATT and WTO rules on species and the environment in general, WTO cases and other documentation does support species and environmental protections. This relates to international trophy hunting and trophy import/export agreements too, to the extent, of course, that the WTO is implicated in the first place. Perhaps most importantly, the WTO case demonstrates that at least trade tribunals may take the public outcry surrounding animal cases into consideration. “As society’s abhorrence of the systematic mistreatment of animals in industry rises to the level of a public moral concern, citizens will increasingly pressure their governments to ensure that animals are treated humanely by these industries.” Trophy hunting is an industry as well and may thus be affected by this case. With the seemingly increasing public sentiment against trophy hunting, both legislatures and courts now have grounds on which to rely for weighing the interests of both the public and the affected animals against the typical trade protection interests and purely monetary arguments.