Wild Things: Animal Rights in EU Conservation Law

Abstract The concept of animal rights is highly topical in animal legal scholarship. There is much debate on whether or not animals can and do hold rights, although there does seem to be consensus that animals currently do not have such legal rights that would grant them any foundational protection in the way that human rights do for humans. This article challenges that assumption through a discussion on the legal rights of wild animals under the European Union (EU) Habitats Directive. The article establishes a theoretical framework on animal rights and analyses the Habitats Directive according to the rights framework. It subsequently argues that preliminary fundamental legal rights for certain wild animals can be found in EU conservation law. However, through a discussion on the scope and objective of the Habitats Directive, the article finds that the legal rights that are found are not grounded in the interests of the animals themselves. Instead, the preliminary fundamental animal rights are a by-product of the anthropocentric value of biodiversity and do not support a rights-based approach to animal rights. The article concludes with a discussion on the interpretation that follows from these findings and how an instrument such as the Habitats Directive could implement rights-based wild animal rights.


Introduction
Legal protection for animals can generally be justified through two different angles: the holistic approach of conservation with its focus on ecosystems, or the individualistic approach, with its focus on animal welfare. Animals that live in the wild are mostly seen through the former angle of conservation. As such, depleting wild animal populations forms an integral part of issues surrounding biodiversity loss. These issues are not trivial: biodiversity loss is one of the major environmental problems that the world is facing today. A recently published WWF report warned of a 68% decline in vertebrate animal species populations between 1970 and 2016. 1 The rate of biodiversity loss is alarming enough for the current period to be dubbed the sixth extinction wave, the only one in the history of the earth that is anthropogenic, that is, resulting from the actions of human beings. 2 Whenever we are confronted with endangered species and being called upon to do our part, through donations to nonprofits or through changing our own behaviour, we are often confronted not with these kinds of statistics, but with the individual animals themselves. We will see an orangutan in a diminishing forest, or the iconic image of a polar bear on receding ice sheets. This use of individual animals to evoke feelings of compassion is understandable, but it does not truly reflect underlying conservation ethics. Conservation ethics do not, generally speaking, treat individual animals as worthy of protection. On the contrary, conservation ethics is known for its holistic, species or ecosystem approach, and views individual animals as part of the bigger picture; a means to an end. 3 According to conservation ethics, high species diversity is good for the ecosystem, and thus species that are endangered should be saved. In that sense, hundreds of abundant animals can be sacrificed to give one plant species a chance of survival: nature, it is assumed, is not fair, and the harm and suffering of individual animals is inseparable from the wild. 4 The holism of environmental ethics is often pitted against the individualism of animal ethics, in which every animal matters and entitled to respectful treatment. Animal ethics knows multiple approaches, but for the sake of this article, the most relevant is the rights-based approach. The rights-based approach advocates for legal rights for animals, based on the argument that animals have inherent worth, and therefore the moral claim to be treated as an end, not merely as a means. 5 One 1 prominent example of the rights-based approach is that advanced by Tom Regan. According to Regan, all beings that are subjects-of-a-life-in his view mammals aged one and upwards-have inherent worth and thus moral rights. 6 The rights-based approach has gained much traction and found its way to legal scholarship. 7 Especially in normative animal law scholarship, the rights-based approach and possibility of legal rights for animals is arguably dominant, as it is seen as the most important alternative for the current existing welfarist approach. 8 The rights/welfarist dualism-where the two are seen as the only, mutually exclusive optionscan be seen as a relic from 'first-wave animal law' and is now viewed more as a continuum that involves alternatives. 9 However, since attention to wild animals has been lacking in animal law scholarship, I consider an elaboration on the rights-based approach to wild animals necessary and appropriate. 10 In this article I will discuss wild animal rights, particularly fundamental rights. I will argue that certain wild animals currently hold fundamental rights in European conservation law, but that these rights are not rightsbased-in the sense of being grounded in a deontological understanding of animals' moral rights-but are rather a by-product of the anthropocentrism of conservation law. In order to make this argument, I will first explore the relevant aspects of rights, such as when it is possible to speak of a right, whether animals can be right-holders in general, and why it is relevant to make a distinction between fundamental and other animal rights. After establishing this framework, I will discuss the existence of the fundamental right to life for wild animals. My aim is to show that fundamental wild animal rights are not based on the inherent worth of animals, but on an anthropocentric interest, which can be explained by the hierarchical structure of conservation law. The argument I will make is that this hierarchical structure ensures a certain approach to wild animal rights, which I have dubbed the 'elitist approach' . The elitist approach 6 Regan regarded the following as necessary capacities to be a subject-of-a-life: 'beliefs and desires; perception, memory, and a sense of the future, including their own future; an emotional life together with feelings of pleasure and pain; preference-and welfare-interests; the ability to initiate action in pursuit of their desires and goals; a psychophysical identity over time': T Regan, The Case for Animal Rights (Berkeley, University of California Press, 1983) 243-246. means that certain animals are deemed higher on the list of priorities for humanity, and receive an elite treatment in comparison to other animals.
My conclusion is twofold. First, the elitist approach exposes that the fundamental rights for wild animals under the Habitats Directive only exist preliminarily and are arguably not fundamental rights at all. Regarding 'preliminarily' , I mean that these rights are technically fundamental rights, when analyzing the law using the established rights framework, but that does not mean that they are fundamental rights in a rights-based sense. My second conclusion draws on these findings and has a normative perspective. To avoid the elitist approach, wild animal rights need to be grounded in the protection of the moral rights of individual animals, not in the human interest in biodiversity. To establish a legal instrument on conservation that would entail fundamental rights in a moral sense, a shift in conservation law is required. By elaborating on this topic, I aim to contribute to the scholarship on animal law by addressing the current gap of animal law scholarship for wild animals; specifically, the lack of discussion on legal rights for wild animals.
First off, some limitations are appropriate. Spatially, this article focuses on the European Union (EU) and its main conservation instrument, the Habitats Directive. I do believe, however, that similar analyses are possible with other conservation instruments, and the focus on the Habitats Directive is, in that sense, a case study. 11 With 'wild animals' , I mean animals (all animals, except for humans, that belong to the kingdom Animalia) that are not under human control or supervision. This accordingly includes feral animals that belong to domesticated species and excludes animals belonging to wild species that are in captivity due to, for example, conservation or scientific experimenting purposes. Some animals in Europe are borderline cases and their treatment as wild or captive animals depends on the national legal system.

What Are Animal Rights?
In this section, I sketch out the framework of rights that I will use to analyse the Habitats Directive. The goal is to discuss all the relevant aspects that are necessary to answer the question whether it can be stated that wild animals hold rights under the Habitats Directive. With that in mind, I start by elaborating on what I mean when I refer to a 'right' . In addition, I will discuss who is capable of holding rights and what the holding of a right 11 For an interesting take on rights in the Endangered Species Act of the United States, see D Waltz, 'The "Embarrassing" Endangered Species Act: Beyond Collective Rights for Species' (2020) 45 Columbia Journal of Environmental Law 1. means. Finally, I will discuss how to determine what, when looking at a specific legal rule, the right in question is and how to determine who the right-holder in question is. After the framework is established, I will discuss two alternative approaches to specific aspects of the rights framework. These are, firstly, the question of what the right is, when looking at a specific legal rule, and secondly, the capability of being a right-holder. Finally, I discuss the distinction between simple and fundamental animal rights that is set out by Saskia Stucki. The alternative approaches in this section provide potential answers to my conclusion that the Habitats Directive entails fundamental rights for wild animals, but only preliminarily, meaning that the rights do not reflect the moral rights of animals.

Theoretical Framework of Animal Rights
I will not attempt to exhaustively answer here the question what it means to have a legal right. However, in order to make the argument that wild animals have some form of rights, it is important to clarify what is meant exactly with that statement. For this, I will begin with the 'Hohfeldian system' from Wesley Hohfeld. The Hohfeldian system describes the internal structure of rights and its basic elements: the privilege (liberty), the claim, the power, and the immunity. 12 All elements have a correlative that is simultaneously the opposite for another element. For instance, the correlative of a claim is a duty, which is also the opposite of a liberty. 13 For the purpose of this article, I will focus solely on the claim and its correlative. A claim-right is correlative to a duty, which means that any duty that is required under the law is accompanied by a claim-right to the conduct that the duty requires. 14 The correlative claim-duty relationship, or 'Correlativity Axiom' as Matthew Kramer calls it, 15 works both ways, so a duty is always entailed by a claim-right, and vice versa.
Since I want to make the argument that for certain duties, the correlative right-holder is a wild animal, it needs to be possible for said animal to hold rights. Scholars do pose a certain threshold for being capable of being a right-holder. Visa Kurki considers sentience as a necessary condition of an individual right-holder and includes 'most vertebrates' as 12 Leif Wenar, 'Rights' in Edward N Zalta (ed) right-holders. 16 Joel Feinberg, similarly, looks at the interests and whether an entity has a good of its own, to conclude that animals can indeed hold rights, whereas a building or an area of wilderness cannot. 17 Kramer does believe that buildings or plants can have interests, but considers the relevant factor of whether 'the interests of those creatures and things are sufficiently close (in morally pregnant respects) to the interests of mentally competent human adults' . 18 Kramer's threshold for being sufficiently close appears to be, similarly to Kurki's stance, sentience. 19 I follow these approaches in considering sentience as a relevant threshold for right-holders: sentience establishes whether an entity has interests that can be protected through rights. 20 The assumed correlation between sentience and interests is, in my view, the crucial aspect about sentience that makes it the required property for an entity to be capable of being a right-holder. Hence, sentient wild animals can be right-holders. 21 In determining what the conferred right is, when looking at a legal rule, the Hohfeldian approach views rights as conclusions that are reached through interpretation of the legal materials. 22 The Hohfeldian view starts with the law, for instance, a provision containing a legal duty, and uses the Hohfeldian system to find the correlating right: the right is a conclusion of that analysis.
According to some scholars, an entity can only be a right-holder if that entity is a legal person. Legal personhood is often used to mean that said entity can hold rights, for example, in the work of Steven Wise. Wise describes a legal person as an 'empty rights container' that can be filled The focus on sentience is related to the utilitarian approach to animal ethics, in which the dominant view is to minizine suffering. There are, however, scholars who state that the emphasis should be on flourishing, thereby opening up the potential of ecosystems or plants to be right-holders. See, for instance, I Offor, 'Second Wave Animal Ethics and (Global) Animal Law: A View from the Margins' (2020) 11 Journal of Human Rights and the Environment 268, 275-276. 21 The confirmation of sentience, as opposed to rationality, also implies a commitment to the Interest Theory of rights. The Interest Theory means that the function of a right is to further the right-holder's interests and is usually juxtaposed with the Will Theory, according to which the function of a right is to give the right-holder a choice. As the Will Theory generally requires the competence to exercise powers, those who adhere to the possibility of animals as right-holders usually adhere to the Interest Theory. See also L Wenar (ed), 'The Nature of Rights' , Rights: Concepts and Contexts (Abingdon, Routledge, 2012). with rights, whereas a legal thing does not have such a container. 23 According to Kurki, Wise's view is one of the formulations of the Orthodox View. 24 In the Orthodox View legal personhood and rights, or the capacity to have rights, are equated, which leads to certain conflicts when assessed in light of the Hohfeldian system. Instead of equating legal personhood and rights, Kurki argues, legal personhood should be looked at in incidents, as a cluster property. 25 Under my framework, I follow Kurki's theory in that animals do not have to be recognized as legal persons to be able to hold rights.

Alternative Approaches to the Rights Framework
The most relevant alternative approach, for the purpose of this article, is the one put forward by Joseph Raz. Raz does not adhere to the Correlativity Axiom. 26 Instead of finding a correlation between duties and rights, Raz finds that a right is the ground of a duty; a justification for another entity to have a duty. 27 The justification of the duty, according to Raz, lies in the interests of the right-holder. 28 He, therefore, does not believe that a right can be a conclusion from analysing a legal rule that entails a duty. Rights are, in his view, not conclusions, but justifications for duties. Finally, Raz states that, in addition to being grounds for duties, rights can also serve as grounds for other rights: these are derivative rights that are grounded in core rights. 29 The core right is grounded in the individual interests of the right-holder, and the derivative rights are grounded in the core right.
Overall, the right-holder's well-being is a sufficient reason for holding others to be under a duty. 30 Raz's view that rights are grounded in the interests of the beneficiaries of duties is, he states, consistent with the 'reciprocity thesis' in which rights (or duties) can only be had towards members of the same moral community. He argues that even when duties are held towards non-members of the moral community, these duties are not based on the interests of the beneficiaries of those duties. 31 Under this approach, it is possible for an entity to be the beneficiary of a duty but not be the right-holder, because the duties are not based in their interests. The capacity to be a right-holder, according to Raz, goes beyond sentience. Raz believes that, in order to have a well-being that grounds duties, one needs to be of 'ultimate value' , meaning that one is intrinsically valuable in a non-derivative way. 32 Thus, in order to know who the rightholder of any legal rule is, it is useful to think on whose interests the duties are based. This approach is what Neil MacCormick refers to as finding the 'intended beneficiary' of a legal rule. 33 The crucial term here is 'intended' , meaning that it is not just the entity who benefits from a duty, but the entity that is intended to benefit from a duty-and belongs to the same moral community, according to Raz-that is the right-holder.
These alternative approaches provide an alternative framework of rights from the one I have previously established. As I will ultimately show, my framework of rights concludes in preliminary fundamental rights for wild animals. The alternative framework, however, does not lead to that same conclusion and thereby exposes the crucial gaps that are missing in the initial framework. Moreover, the alternative framework provides answers as to how to achieve legal rights for wild animals that go beyond the preliminary rights.

Distinction between Simple and Fundamental Rights
Up until now, I have provided the framework under which it is possible to state that animals are potential right-holders. The next step is to determine whether animals hold some rights already. Indeed, some scholars argue that they do. 34 Other scholars, like Gary Francione, believe that animals do not have any rights in any meaningful way, and see the lack of rights as the basis of their suffering. 35 Hence, Francione is an advocate for a rights-based approach towards the protection of animals and defends an abolitionist approach that rejects all use of animals. 36 Kurki and others, such as David Favre, believe that animals hold some rights already. 37 There is, however, a distinction to be made between the rights that animals, according to scholars such as Kurki and Favre, already have, and the idea of fundamental rights that can be associated with the abolitionist approach. Regarding the content of fundamental rights, Kurki refers to fundamental protections. To know whether a right is a fundamental protection 'is determined both by the interests safeguarded and by the hierarchically high status of the claim-right' . 38 Examples of fundamental protections include the right to life, personal liberty, or bodily integrity. 39 Favre also creates a distinction between weak and strong legal rights, but these are mostly related to the legal standing of animals. 40 Standing is an issue that is often debated in US-based scholarship, but less so in EU-based scholarship, perhaps because legal standing of animals is not always required in order for civil society to take the judicial route. 41 For that reason, legal standing will not be discussed in this article. 42 In my view the most elaborate distinction, and the one I will consider henceforth, is the distinction between simple and fundamental rights by to Stucki. Like Kurki, Stucki states that simple animal rights already exist, at least theoretically. The existing simple animal rights come from the imposed duties by animal welfare laws. Animals are the intended beneficiaries of imposed animal welfare duties, and the animal welfare laws are designed to protect their interest. 43 The imposed duties thus correlate to The exclusion of legal standing of the scope of this article does not imply that legal standing for animals is not an issue within the EU at all; it definitely can be. However, the issue is less relevant for wild animals, which are often covered by environmental laws and are therefore included in the scope of the Aarhus Convention. See, for instance, Case C-240/09 Lesoochranárske zoskupenie ECLI:EU:C:2011:125 para 49-52 on this matter. rights that are held by animals, although 'it seems fair to say that unwritten animal rights are not (yet) legally recognized in practice and remain a mostly theoretical possibility for now ' . 44 The rights that can be deduced from animal welfare laws are 'simple' rights 'because they protect interests of secondary importance or because they are easily overridden' . 45 The secondary importance exists in the substance of these simple rights, meaning that, for instance, they aim to give an animal a right not to be killed, except in a certain way, as opposed to the right not be killed at all. 46 Another example of a secondary interest is that a laying hen may have a (simple) right to be in a cage of a certain minimum size that allows for minimum movement, as opposed to the more basic interest in freedom. 47 The second group that Stucki identifies as simple rights are those that may protect more basic interests, such as the protection of life or the protection against harm, but that lack what she terms 'normative force' . As such, these rights have such a high infringeability, in the sense that they are easily trumped by trivial human interests, which is why they cannot be referred to as fundamental rights. 48 Stucki juxtaposes simple animal rights with 'proper, strong fundamental rights that animals potentially ought to have as a matter of future law' . 49 The criteria for fundamental animal rights are given by the prior analysis: substance and normative force. '[F]undamental animal rights are strong legal rights along the lines of human rights that are characterized by the cumulative features of substantive fundamentality and normative robustness due to their reduced infringeability' . 50 Examples of these potential future fundamental animal rights are the right to life, bodily integrity, liberty, and freedom from torture. 51 Note that reduced infringeability does not mean that the rights in question need to be absolute. Francione notes that this 'absurd result' is not intended by animal rights theory-similar to human rights, animal rights can be overridden by ' To recapitulate, in current animal rights theory, under the framework that I have established, it is possible for (at least sentient) animals to hold rights. These are mostly claim-rights and correspond to a duty that protects the interest of the animal. Certain rights, correlative to duties from animal welfare laws, already exist for animals, but these lack substance and normative force and are thus simple, not fundamental, rights. Examples of fundamental animal rights would be the rights to life, bodily integrity, or liberty, and are usually discussed in a normative context, that is, how the law should be.
In the next part, I will, pace Stucki, argue that fundamental animal rights under this framework do exist, and that they can be found in EU conservation law. I will analyse the Habitats Directive and argue that certain animals are granted protections from the Directive that amount to preliminary fundamental rights. However, I will argue that these preliminary fundamental rights do not follow the rights-based approach and are therefore lacking merit in substantial ways. This means, I will argue, that another important criterion could be added to the criteria of a fundamental animal rights: the right needs to be based in the inherent worth of individual animals.

The EU Habitats Directive
Wild animals exist in a different legal paradigm than the animals that are kept by humans. Animal welfare laws, discussed by Stucki as entailing simple animal rights, contain certain obligations on the treatment of kept animals, such as housing, feeding, or transport. These laws naturally do not apply to wild animals. General anti-cruelty laws that prohibit the infliction of any unnecessary suffering can include wild animals, but this is not always the case. 53 Most of our conduct towards wild animals, therefore, is regulated by nature protection laws or by laws regulating specific practices, such as hunting laws.
In the EU, policy contributing to 'preserving, protecting, and improving the quality of the environment' belongs to one of the principal areas of shared competence between the EU and its Member States. 54 With regards to wild animals specifically, the Habitats Directive and the Birds Directive form a comprehensive framework on the protection of wild animal species 53 In Finland, wild animals are included in the anti-cruelty law scope (Section 2 Animal Welfare Act 247/1996). In Spain, they are not (Article 2, Law 32/2007). in the EU. 55 The Habitats Directive is inspired by the Bern Convention, 56 and follows the Convention's objective to 'conserve wild flora and fauna and their habitats, with an emphasis on endangered and vulnerable species, including those that are migratory' . 57 The method of achieving this objective is through a listing mechanism of animal species and habitats in the annexes of the directive. When listed, the species and areas fall under certain regulations and protections. Being an endangered or vulnerable species, as well as 'cultural considerations' , can lead to being listed. 58 Even though conservation science plays a role, the listing of species and areas is ultimately a political decision by the European Commission and the Council. 59 There are differences between the levels of protection under the different annexes. Animals belonging to Annex II species have special protected areas and habitat types designated to their protection. 60 Regarding Annex IV species, Member States are required to establish a 'system of strict protection' and it is prohibited to kill or disturb animals belonging to these species, or to disturb or deteriorate their breeding or nesting sites. 61 Any species can be listed on both Annex II and Annex IV, as the annexes are not mutually exclusive. The Eurasian lynx (Lynx lynx) is an example of a species that falls under the protection of Annex II and Annex IV. Annex V is the final list for animal species. 62 It contains a less stringent form of protection for its listed species than Annex IV: taking and exploitation is allowed as long as it is compatible with a 'favorable conservation status' . 63  Annexes I and III concern habitats and are excluded from the scope of the article, as well as the plants that are listed in the Habitats Directive. 63 Habitats Directive (n 58) article 14.
Annex IV animals in particular enjoy arguably high levels of protection, and Hendrik Schoukens has argued that the Habitats Directive can be referred to as constituting rights. 64 Specifically, he mentions that the Directive constitutes a species right to life. 65 He bases this on Article 12 of the Habitats Directive, the provision that refers to the duties of Member States regarding Annex IV animals. The exact formulation of the first subparagraph of Article 12 is as follows: Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV (a) 66 in their natural range, prohibiting: a. All forms of deliberate capture or killing of specimens of these species in the wild; b. Deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration; c. Deliberate destruction or taking of eggs from the wild; d. Deterioration or destruction of breeding sites or resting places.
Thus, Article 12 contains a number of duties for Member States. The duties protect the interests of animals, such as their interest to migrate, or to breed. Therefore, under the rights framework I have previously established, the Member States' duties correlate with certain claim-rights of the affected animals. However, there are two aspects of Schoukens' claim that require further inspection. The first is whether Article 12 constitutes a right for the species, or towards the animals themselves, and the second, whether Article 12 contains any fundamental animal rights, such as the right to life.

Species and Insects
As noted earlier, animals can be right-holders. The analysis, however, did not support the claim that species can be right-holders as well. In order for a species to be a right-holder, it is required that, at least, the species have some kind of shared interests that can be protected or advanced. Otherwise, it might as well be genuses, orders, or classes that can have rights, as James Huffman rightly points out. 67 To answer the question of whether a species can have shared interest, I follow Feinberg: A species is not a sentient being, and it "cannot have beliefs, expectations, wants, or desires, and can flourish or languish only in the human interest-related sense". 68 The animals themselves, as Christine Korsgaard points out, have no distinct stake in the continued existence of their kind, contrary to perhaps humankind. 69 Therefore, any species right cannot be based on the accumulative interests of its members. Since a species does not have shared interests, there are no interests that can be protected. Following the necessity of having (shared) interests to be able to be a right-holder, this leads to the conclusion that a species cannot be a right-holder. 70 Fortunately, Article 12 refers to specimens, as well as species, so a reading of Article 12 can also lead to the conclusion that it is not the species, but the individual animals that belong to the listed species that are the right-holders in this case. Individual animals have interests that can be protected or advanced, so Annex IV animals can be right-holders. There is, however, one caveat here. Annex IV lists a wide number of invertebrate species, such as insects or mollusks. The sentience of invertebrates is still debated, as there is no conclusive evidence that they feel pain. Therefore, a strict reading on the threshold for being capable of being a right-holder would mean that invertebrates would have to be excluded from rights derived from Article 12. Vertebrate species are generally assumed to have sentience. Recently, scientific research shows that it is likely that cephalopod mollusks and decapod crustaceans are sentient as well. 71 Of other invertebrates the sentience is yet unknown or even unlikely, and therefore a distinction in Annex IV animals is required. For the sake of avoiding lengthy references, I will keep referring to Annex IV animals, but by this I do mean only the sentient animals of Annex IV.
Thus, a theoretical reading of Article 12 can entail certain rights for Annex IV animals. Next, I will argue that I believe Schoukens is correct in his label of the right, and that Article 12 constitutes a fundamental animal right to life following an analysis that is in line with the established rights framework.

Preliminary Fundamental Rights
Article 12 contains prohibitions on killing or capturing an animal, as well as a prohibition on their disturbance during their life cycle. Considering the wording of the exordium of Article 12 ('take requisite measures'), these prohibitions can be interpreted as an obligation on Member States to formulate safeguards to protect the lives of animals. The ability to live an undisturbed life, without being captured or killed, is among the basic interests of any being. Compared to the examples that protect secondary interests, the Article 12 protections go directly to the core. The provision does not merely contain prohibitions on the use of certain killing methods, or the minimum size of cages, which entail protection of secondary interests. Instead, it can be said that the Article 12 protections are fundamental protections, of life and liberty. Therefore, the rights from Article 12 amount to a high level of substance and pass the first criteria.
However, the recognition that Article 12 protects basic interests does not mean that they are fundamental rights. If the rights are lacking in normative force, through a 'conspicuously low threshold for permissible infringements' , they can still be labelled as weak or simple rights. 72 This is not to say that fundamental rights could never be infringed. Indeed, human rights are often formulated vaguely, and need to be balanced in order to determine what legal rules they imply. 73 Moreover, human rights often have potential derogations, including the human right to life. 74 Whether the Article 12 rights have a sufficient normative force depends on the framework of the balancing act between Article 12 and its derogations, which are articulated in Article 16 of the Habitats Directive. Examples of Article 16 derogations are preventing serious damage or when the interest of public health and public safety, or any other overriding public interest, requires derogation. 75 In 2021, the European Commission published a Guidance Document on the Habitats Directive, where substantive attention is given to the Article 16 derogations. According to the document, such derogations must be applied restrictively, may not undermine the objective of the overall Directive, and must meet three tests on the conditions of any derogation: the demonstration of one or more of the reasons listed in Article 16; the absence of a satisfactory alternative; 72 Stucki (n43) 550. 73 Kurki (n14) 58. 74 With thanks to the anonymous referee who pointed this out. 75 Habitats Directive (n58) article 16. and the assurance that a derogation is not detrimental to the maintenance of populations at a favourable conservation status. 76 Interestingly, even animal welfare is relevant in the balancing act between article 12 and its derogations. According to a recent judgment from the Court of Justice of the EU (CJEU), animal welfare considerations play a role in deciding whether a derogation is permitted or not. 77 The CJEU explicitly referred to Article 13 of the Treaty on the Functioning of the European Union (TFEU), which states that Member States shall 'pay full regard to the welfare requirements of animals' when implementing certain Union policies. 78 The environment is not included among these policies, but that did not stop the CJEU from stating that Article 13 needs to be taken into consideration when assessing derogations. 79 This case concerned derogations on the Birds Directive but equally applies to the Habitats Directive, according to the Guidance Document. 80 On the derogation in the case of a conflict with public interest, the Commission has stated that company or individual interests do not suffice, and that derogating States must be able to prove the necessity and the link between the interest and the derogation. 81 In animal welfare law, it is often stated that the prohibition of 'unnecessary' suffering of animals is an empty statement that still allows for widespread exploitation, since virtually any kind of harm can be argued to be necessary for the fulfilment of a human interest. 82 In comparison, a German provision under which derogations from Article 12 were allowed as long as the animals in question were not subjected to 'deliberate harm' was not accepted by the CJEU, since it did not provide a 'legal framework consistent with the derogatory regime established by article 16' . 83 The wording of Article 16 provides clear rules on the balancing act between the interests that are protected by Article 12 and other interests, and the Guidance Document demonstrates that the requirements for derogations from Article 12 are high. Therefore, I argue that Article 12 has the normative force that is required in the sense of the second criteria for fundamental animal rights.
Following the above analysis, I agree with Schoukens that Article 12 formulates a right to life. Contrary to his findings, I believe this right to life belongs to Annex IV animals, not species. In accordance with the distinction between simple and fundamental rights as formulated by Stucki, the right to life is a preliminary fundamental animal right. In addition, the prohibition on capture in Article 12 can be interpreted to constitute a fundamental right to liberty, with the same argumentation as sketched out above. The argumentation is strengthened by a recent ruling from the CJEU that stated that Article 12 also applies to animals that leave their natural habitat and stray into human settlements, as 'the protection provided for in article 12(1) of the Habitats Directive does not include limits or boundaries' . 84 Thus, preliminary fundamental wild animal rights can be found in the Habitats Directive. However, there are two aspects of the Habitats Directive-which can be applied to conservation law more generally-that make these preliminary fundamental animal rights lacking in substantial ways and incompatible with a rights-based approach to animals, which would lead me to conclude that these rights are not quite fundamental and an elaboration on the rights framework is necessary. These aspects are the objective and scope of the Habitats Directive, and together they amount to what I refer to as the hierarchical structure of conservation law.

The Anthropocentrism of Biodiversity Protection
Let me start with the objective. As previously mentioned, the objective of the Habitats Directive is to conserve wild flora and fauna. This objective aligns with the idea of the conservation of 'biodiversity' , a relatively new term that is so established as an environmental goal that it is difficult to truly question its meaning, let alone refute its policies. Every human and every nation-state acknowledge the importance of biodiversity for the world and for humanity. Biodiversity, it is assumed, 'gives us the food we eat, filters the water we drink, and supplies the air we breathe' . 85 These functions are obviously crucial to human life and I, too, believe in the importance of biodiversity. However, I would like to focus on three aspects of the concept of biodiversity that are worth questioning, especially from the perspective of animal protection. These are the separation between human (actions) and biodiversity, the intrinsic value of biodiversity, and the connection between biodiversity and sustainable exploitation.
Biodiversity, although it is commonly stated as an objective in conservation law such as the Habitats Directive, is not a term that is consistently defined. 86 Issues such as the conservation of areas or the extinction of species are often equated with the concept of biodiversity. 87 Humans and the consequences of human actions, such as domesticated species or introduced species, are usually not included in the scope of biodiversity. Rather, it focuses on wild flora and fauna in their natural habitats. 88 The fixation on that which is 'natural' , to which humans, domesticated, and invasive species do not belong, 89 has an important consequence for animals. The notion implies a predisposed denial of the potential contribution of invasive or domesticated species to biodiversity. This denial is not always warranted. New species, introduced by humans, can increase the overall species richness due to adaptation or hybridization or facilitate the restoration of a degraded ecosystem. 90 Moreover, there is increasing scholarship that claims that nativeness is 'uninformative, even deceptive' , 91 that nonnative species are 'rarely significant causes of extinction' , 92 and that the binary between native and invasive species 'further presumes and reinforces the idea that nature cannot evolve and adapt, and is instead fixed at some arbitrary point in history, after which humans expect the natural world to remain static rather than to evolve' . 93 The preference for nativeness that is embedded in biodiversity, therefore, does not always apply and can lead to disastrous policies for non-native species.
The second aspect concerns the intrinsic value of biodiversity. Conservation law often repeats the intrinsic value of biodiversity, including in the preamble of the Bern Convention. The idea that biodiversity is an end in itself, and should be valued as such, is mirrored in conservation ethics, as described previously. A full overview of intrinsic value and how it can relate to conservation is better done elsewhere, 94 so this section will be limited to demonstrating the anthropocentrism within the recognition of the intrinsic value of biodiversity. Intrinsic value is usually seen as opposite of instrumental value-the idea that a thing only has value because of its purpose. Intrinsically valuable things, therefore, are valued beyond their purpose; they are seen as an end, not just means to an end. 95 However, multiple interpretations of the concept of intrinsic value are possible and its application to biodiversity is more of the derivative kind.
According to Raz, there is a distinction to be made between instrumental, intrinsic, and ultimate value. Instrumental value indicates the value that the thing derives from 'the value of its consequences' that it has, is likely to have, or can be used to produce. 96 Intrinsic value lies in those things that have a derivative value that is 'a constitutive part of a valuable form of life' . 97 So whenever a derivative value is of that level, the thing that this value is coming from is itself intrinsically valuable. Ultimate value belongs to those that have a non-derivative value. 98 According to Raz, human beings are the only ones that have ultimate value.
Korsgaard's idea of extrinsic value relates to this, as extrinsically valuable things are also valuable because of their circumstantial properties-and thus in relation to other things. According to Korsgaard, something can be an end in itself-and thus have 'final' value, because of its extrinsic properties. 99 Raz's intrinsic value and Korsgaard's final extrinsic value are both reflected in musings on the intrinsic value of nature in environmental ethics. J. Baird Callicott agrees with Korsgaard, and states that nature is valuable intrinsically because it is so valued by humans. 100 I agree with Callicott in that I do not believe that biodiversity can be valued intrinsically without humans ascribing that value to it. My distrust in the idea of the intrinsic value of biodiversity is only further strengthened by the lack of a definition of biodiversity. The role of humanity in ascribing value to biodiversity, to me, clarifies the anthropocentrism of the term. 101 Finally, and relatedly, consider the connection between sustainable exploitation and biodiversity. The role of biodiversity in sustainable development is not controversial. Halting biodiversity loss is the objective of Sustainable Development Goal 15 from the United Nations Agenda for Sustainable Development, and the Habitats Directive states in its preamble that the instrument makes a contribution to the general objective of sustainable development. The timely focus on sustainable development is further demonstrated by the Rio Declaration, adopted in the same year as the Habitats Directive, of which the first principle notes that 'human beings are at the centre of sustainable development' . 102 Sustainable development itself justifies exploitation under certain restraints, making it 'sustainable use' , and the focus on exploitation is similarly apparent in biodiversity.
In the Habitats Directive, the focus on exploitation is most evident in the legislation regarding Annex V animals. Annex V species are, as previously mentioned, species that are deemed relatively less threatened than Annex IV species. The laws applicable to Annex V animals show that the Habitats Directive ultimately views animals as part of renewable natural resources that can be utilized sustainably. 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. 103 The link between sustainable use, or, exploitation, and biodiversity is further exemplified in the EU Biodiversity Strategy for 2030. The Strategy announces ambitions to develop methods, criteria and standards to describe the sustainable use of biodiversity, as well as more specific usage such as the reliance on genes, species and ecosystem services for industry and companies as critical inputs for production. 104 As these instruments show, the protection of wild animals in the Habitats Directive is not founded on the inherent worth or moral consideration of individual animals but on the human interest in the sustainable use of natural resources.

The Elitist Approach in the Habitats Directive
The second aspect of the hierarchical structure of the Habitats Directive is its scope. Annex V animals, as mentioned, are listed by the Directive, but they can be killed or captured as long as their taking remains compatible with sustainable exploitation. An example of an Annex V animal is the European pine marten (Martes martes). Many wild animals do not appear on Annex IV or Annex V and are not covered by the Directive. An example of a species that is not listed, and is therefore unprotected by the Habitats Directive, is the fox (Vulpes vulpes). Among the species that are not listed in the Directive are a number of species that are listed by a more hostile than protective EU law: the EU Regulation on Invasive Alien Species. 105 These species are 'invasive alien species of Union concern' and are listed on the 'Union list' . 106 An example is the grey squirrel (Sciurus carolinensis).
There is an important distinction to be made between the marten, the fox, and the squirrel in these examples, but they do share one commonality: none of them can be said to enjoy a legal fundamental right to life. The marten can be killed, but its killing can be subjected to certain 'management measures' and there is a list of means of capture and killing that are prohibited from use, such as electrical stunning devices. 107 These kinds of protections, however, only protect secondary interests and amount to simple animal rights at most. The fox is absent from the lists, and neither its killing nor the means of killing are regulated by the Habitats Directive. The squirrel is arguably the worst off; as a member of the Union List, it is at the risk of being on the receiving end of eradication measures, meaning the removal of the entire population by lethal or non-lethal means, such as relocation or sterilization efforts. Of course, the previously mentioned lynx from Annex IV, the marten, the fox, and the squirrel all have equal inherent worth in the moral sense; they are all sentient beings that can suffer, and thus have moral rights according to most animal law scholars, yet only one of them enjoys a preliminary fundamental right to life under EU law.
The reason for this is the aforementioned objective, but the-from a moral point of view, arbitrary-distinction between these animals also lays bare a more inherent issue within conservation law: because it is up to humans to decide which species to preserve, the wild animals that hold preliminary fundamental rights receive a privileged status vis-à-vis the other animals: what I refer to as an elitist approach. This approach is not based on the animals' value for their own sake, but on a human interest in the rarity of the species because their preservation 'ensures biodiversity' .
In conclusion, there is a focus on species, not on individual animals, in conservation law. The value that is attributed to right-holding animals is not based in their own value, but in the value that rare species have for the concept of biodiversity. The denial of animals to have value 'in their own right' , is at the core of anthropocentrism. 108 As such, the preliminary fundamental rights in Article 12 do not take a right-based approach, in the sense that they are based on the moral rights of animals, but instead they are grounded in the anthropocentric value of biodiversity. The protection of the interests of the animals involved is nothing more than a by-product of the overall purpose of the law. Conservation laws, such as the Habitats Directive or others that follow a species approach, thus lay bare a problematic paradigm in which inequal treatment of wild animals, based on human interests, is the deciding factor in determining which groups are awarded legal rights and which groups are not. The moral rights of animals do not play a role in this attribution.

The Habitats Directive under the Alternative Rights Framework
In the previous section, I have shown that the preliminary fundamental rights, which can be found through an analysis of Article 12, are grounded in the anthropocentric value of biodiversity. To address why I believe these fundamental rights are preliminary, I turn to the alternative approaches to the rights framework that were described in the first section of this article. To recapitulate, the alternative approach finds (i) that core rights form the grounds for duties or derivative rights, and (ii) that rights themselves are grounded in the interests of the right-holder, which is (iii) the entity intended to benefit from the legal duty. The duties that Member States are under, as the anthropocentrism of the Habitats Directive shows, are not grounded in the interests or wellbeing of animals. Instead, the duties are grounded in the interest of humanity in maintaining biodiversity. The Article 12 rights are derived from the core right of humanity to biodiversity as a life function. Under this approach, it follows that the derivative right from Article 12 is not the right to life for animals, but the right of humanity to a certain number of individual animals so that the species is not under threat. As exposed by the elitist approach, the Habitats Directive does not recognize the intrinsic value of individual animals. In the terms of Raz, individual animals do not have 'ultimate value' and this would make it unlikely, if not impossible, for the Annex IV animals to be right-holders.
As mentioned above, Annex IV consists of both sentient and (possibly) insentient animals. As animals without sentience are unlikely to be capable of being right-holders at all, a distinction had to be made under my established rights framework. The fact that the Habitats Directive does not make that distinction is because the instrument does not consider the Annex IV animals to be the right-holders. Instead, the intended beneficiary of the Habitats Directive is humanity. The conclusion that the analysis of Article 12 of the Habitats Directive leads to fundamental rights when following only one of the two rights frameworks, and not the other, can be interpreted in two different ways. The first interpretation is that these preliminary fundamental rights are not really rights at all. Instead, the preliminary fundamental rights demonstrate that the framework of rights that is established at the start of this article is lacking substantively. This interpretation would imply the necessity to alter the framework in a way that supports the idea that rights exist only for the purpose of the wellbeing of the right-holder. For instance, the framework could be altered by adding a third criterion to the fundamental rights criteria that are put forward by Stucki: a criterion that states that the right is justified by protecting the interests and well-being of the right-holder and cannot be derived to the protection of other interests.
A second interpretation is that the preliminary fundamental rights can be taken at face value, but do not really serve any purpose in furthering the animal rights position advanced by scholars such as Francione. Instead, the preliminary fundamental rights demonstrate how the legal system can accommodate human interests and attribute rights to animals when it is deemed necessary. In that sense, the Habitats Directive is an example of how far the legal system can go in animal protection for human use. Furthermore, for those who believe in the protection of animals for their own sake, the analysis of the Habitats Directive exposes the ways in which the law should change if it were to accommodate rights-based animal rights for their own sake, as opposed to preliminary rights.

Right to Life and Elitist Approach Compatible de Lege Ferenda?
The previous section shows that rights-based animal rights are currently lacking in the Habitats Directive. I will now briefly discuss wild animal rights under conservation law from a normative perspective. For conservation law to entail substantial rights to wild animals, these rights would have to be grounded in the Razian ultimate value of individual animals. The rights-based approach would not mean that there is no more space for biodiversity considerations in the law. All rights are, ultimately, balanced against other interests, and animal rights would be balanced against the interests of other animals, animal populations, and human interests. However, it would mean that an instrument such as the Habitats Directive would contain provisions that recognize the ultimate value of individual animals; that they are morally considerable. It could do so by specifically stating that each animal has a right to life, but that this right is not absolute and can be lawfully taken for purposes noted in the law.
Initially, this change might not seem substantial, but I observe two important consequences. Firstly, the right to life would need to be reflected by the law in provisions that ensure respectful treatment. For instance, unprotected animals such as the fox would be no longer subjected to all killing techniques for all kinds of purposes, but a certain level of protection would have to be guaranteed. Secondly, the balancing of interests could ultimately lead to a different view on biodiversity as a whole, especially the previously discussed aspect of exploitation that is currently ingrained in biodiversity. Although the human interest in biodiversity as a life function might be favoured over an animal's right to life, it is less likely that the human interest in economic gain would also be favoured. That is, if the right to life cannot be infringed easily, which the Habitats Directive would have to guard for. Either way, the rights-based approach would lead to an understanding of biodiversity as an anthropocentric objective, instead of the idealistic holism that it is currently still mistaken for.

Conclusion
This article started by establishing a rights framework that can support animal rights with the objective to apply the framework to the Habitats Directive, as well as certain alternative approaches to rights theory. Under the established rights framework, a right can be a fundamental animal right if it has substance and normative force, and I have argued that Article 12 in the Habitats Directive meets these criteria. This led to the interim conclusion that the duties listed in Article 12 entail a preliminary fundamental right to life for the sentient animals that are listed in Annex IV. However, this conclusion does not mean that the Habitats Directive is an illustration of a rights-based approach to animals. By discussing the scope and the objective of the Habitats Directive, I have demonstrated that the Habitats Directive does not take a rights-based approach at all, but rather entails preliminary fundamental animal rights as a by-product of a human interests in biodiversity. Biodiversity is an ill-defined term that is often equated with concepts that, I have argued, go beyond just species diversity. The concepts I have discussed here, although there are arguably many more, are firstly the fixation on the 'naturalness' of biodiversity, meaning that human actions such as the introduction of species are not included in the idea of biodiversity, but that at the same time human control is needed to maintain the naturalness of biodiversity; secondly, that biodiversity is an anthropocentric idea; and thirdly, that biodiversity and exploitation are highly related.
An analysis of the scope of the Habitats Directive demonstrates the acute differences in the treatment of animals depending on their value for humans-what I refer to as an elitist approach. The elitist approach and anthropocentrism of biodiversity expose how the preliminary fundamental rights are not grounded in the interests of animals, but in the interests of humanity. Following the alternative approaches to the rights framework, specifically the rights-as-justifications approach that is argued by Raz, the preliminary fundamental animal rights are not animal rights at all, but rights that belong to humanity. Whether or not it is desirable to refer to the preliminary animal rights as rights, the lack of the rights-based approach is important to notice, especially from an animal protection perspective. To accommodate a rights-based approach, the Habitats Directive would have to recognize the fundamental right to life for all wild animals.