Trouwborst, A. (2014). Exploring the Legal Status of Wolf-Dog Hybrids and Other Dubious Animals: International and EU Law and the Wildlife Conservation Problem of Hybridization with Domestic and Alien Species. RECIEL 23(1): 111-124.
Keywords: 78Eur/hybridization/legal status/legislation/Malme/management/policy/wolf-dog hybrids
Abstract: Hybridization with domestic or alien species poses a threat to many species of wild fauna. However, hybridization is not explicitly addressed in the provisions of the principal international legal instruments on nature conservation. This article reviews the relevance, scope and substance of wildlife protection obligations under the Bern Convention on European Wildlife and Natural Habitats and the European Union's Habitats Directive with respect to this issue. The problem of wolf-dog hybridization is singled out as a case study. The article concludes that addressing hybridization through preventive and mitigation measures is in conformity with the obligations of States under the Convention and the Directive, and may indeed be essential in order to comply with these obligations. In the wolf-dog context, this includes dealing with feral and stray dogs and captive hybrids, and removing hybrid animals from the wild. At the same time, it appears that the national prohibitions on the killing and capturing of wolves and other strictly protected species, as prescribed by the Convention and the Directive, also cover free-ranging wolf-dog hybrids and similar hybrids living in the wild. This entails that the removal of such hybrid animals from the wild is subject to the rules concerning derogations from strict protection. These rules, however, do not appear to stand in the way of such removal. The article's central recommendation is for the Standing Committee of the Bern Convention and the European Commission to adopt express guidance concerning hybridization.
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RECIEL •• (••) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12052
Exploring the Legal Status of Wolf-Dog Hybrids and Other Dubious Animals: International and EU Law and the Wildlife Conservation Problem of Hybridization with Domestic and Alien Species
Arie Trouwborst
Hybridization with domestic or alien species poses a tions poses a significant threat to many populations of threat to many species of wild fauna. However, wild animals, and may in some cases even lead to the hybridization is not explicitly addressed in the provi- genetic extinction of entire species. For instance, inter- sions of the principal international legal instruments breeding with domestic dogs poses an important threat on nature conservation. This article reviews the rel- to the dingo (Canis lupus dingo),2 the highly endan- evance, scope and substance of wildlife protection gered Ethiopian wolf (Canis simensis)3 and various obligations under the Bern Convention on European other canids.4 Hybridization affects many species Wildlife and Natural Habitats and the European around the world. To give an idea, at a European scale, Union’s Habitats Directive with respect to this issue. one study has estimated that at least 6% of all mammal The problem of wolf-dog hybridization is singled out species are subject to some degree of hybridization.5 as a case study. The article concludes that addressing hybridization through preventive and mitigation mea- Interbreeding with domestic and exotic species and sures is in conformity with the obligations of States other cases of anthropogenic (human-caused) hybrid- under the Convention and the Directive, and may ization are widely perceived as biodiversity conservation indeed be essential in order to comply with these obli- problems. In addition, there are many cases of so-called gations. In the wolf-dog context, this includes dealing ‘natural’ hybridization, involving two wild, indigenous with feral and stray dogs and captive hybrids, and (sub)species.6 This may or may not, depending on the removing hybrid animals from the wild. At the same circumstances and one’s perspective, constitute, or be time, it appears that the national prohibitions on the perceived as, a conservation problem.7 The focus of the killing and capturing of wolves and other strictly pro- present article is restricted to anthropogenic hybridiza- tected species, as prescribed by the Convention and the tion, which is the most problematic type from a conser- Directive, also cover free-ranging wolf-dog hybrids vation point of view. Although natural hybridization also and similar hybrids living in the wild. This entails that gives rise to intricate legal questions, it is beyond the the removal of such hybrid animals from the wild is scope of a single article to deal with both categories. subject to the rules concerning derogations from strict Incidentally, there are also interesting cases where the protection. These rules, however, do not appear to boundaries between the two categories are blurred – for stand in the way of such removal. The article’s central instance, when hybridization is the consequence of the recommendation is for the Standing Committee of the natural adaptation of species to anthropogenic climate Bern Convention and the European Commission to change.8 adopt express guidance concerning hybridization. 2 See, e.g., A.E. Elledge et al., ‘Assessing the Taxonomic Status of Dingoes Canis familiaris dingo for Conservation’, 36:2 Mammal INTRODUCTION Review (2006), 142; M.J. Daniels and L. Corbett, ‘Redefining Introgressed Protected Mammals: When is a Wildcat a Wild Cat and a Dingo a Wild Dog?’, 30:3 Wildlife Research (2003), 213. Hybridization is an increasingly significant biodiversity 3 1 D. Gottelli et al., ‘Molecular Genetics of the Most Endangered conservation problem. This is especially so when wild Canid: The Ethiopian Wolf Canis simensis’, 3:4 Molecular Ecology animals interbreed with domestic ones or with alien (1994), 301. species introduced by man. The adverse effects of the 4 J.A. Leonard, J. Echegaray, E. Randi and C. Vilà, ‘Impact of Hybrid- ‘introgression’ of foreign genes into original popula- ization with Domestic Dogs on the Conservation of Wild Canids’, in: M.E. Gompper (ed.), Free-ranging Dogs and Wildlife Conservation (Oxford University Press, 2013), 70. 1 Generally, see J.M. Rhymer and D. Simberloff, ‘Extinction by Hybrid- 5 See J. Mallet, n. 1 above. ization and Introgression’, 27 Annual Review of Ecology and System- 6 M. Genovart, ‘Natural Hybridization and Conservation’, 18:6 Biologi- atics (1996), 83; F.W. Allendorf et al., ‘The Problem with Hybrids: cal Conservation (2009), 1435; F.W. Allendorf et al., n. 1 above. Setting Conservation Guidelines’, 16:11 Trends in Ecology and Evo- 7 See M. Genovart, n. 6 above; and F.W. Allendorf et al., n. 1 above. lution (2001), 613; and J. Mallet, ‘Hybridization as an Invasion of the 8 A clear example is the recent, presumably climate-induced arrival of Genome’, 20:5 Trends in Ecology and Evolution (2005), 229. the originally African long-legged buzzard (Buteo rufinus cirtensis)as
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Geographically, the article focuses on Europe, where the abstract examinations.11 The current article also adopts issue of hybridization is not expressly dealt with in the this approach by employing one high-profile and, in two most important international legal instruments gov- many respects, representative species as a guide in the erning biodiversity conservation – namely the Council analysis of the legal framework below – namely the wolf of Europe’s 1979 Convention on the Conservation of (Canis lupus). Of all the challenges wolf conservation in European Wildlife and Natural Habitats (Bern Conven- Europe is facing today, hybridization between wild tion),9 and the European Union (EU)’s 1992 Directive on wolves and domestic dogs (Canis lupus familiaris)isa the Conservation of Natural Habitats and of Wild Fauna particularly intricate one.12 It has been documented to and Flora (Habitats Directive).10 From the text of the occur in many wolf populations across the continent.13 provisions in the Convention and the Directive, it is not As regards the dimensions of the problem, studies con- immediately apparent what the position of hybrids is ducted in Italy, Portugal and Spain identified evidence in relation to (strict) protection requirements for the of introgression by domestic dog genes in over 5% of parental wild species, or how measures to address all wolf samples examined.14 Recommendations for hybridization relate to States’ obligations under these addressing this challenge include both preventive and instruments. It is thus desirable, especially given the mitigation measures. Preventive measures mainly considerable influence exercised by the Bern Conven- concern, first, actions to reduce numbers of feral and tion and the Habitats Directive on pertinent domestic stray (free-ranging) dogs to a minimum and, second, policies and regulations, to clarify the scope and sub- the prohibition or restriction of the keeping of wolves stance of legal obligations under these instruments in and wolf-dog hybrids as pets. Mitigation involves the respect of the hybridization problem. The present article detection of hybrid specimens and their removal from aims to contribute to said clarification. 11 For earlier applications of this approach see, e.g., J. Ebbesson, Examples where significant wildlife conservation prob- ‘Lex Pernis Apivorus: An Experiment of Environmental Law Method- lems arise from anthropogenic hybridization in Europe ology’, 15:2 Journal of Environmental Law (2003), 153; A. abound. In the ‘wild x domestic’ category these include, Trouwborst, ‘A Bird’s Eye View of Arctic Governance: Reflecting on the Role of International Law in Arctic Cooperation from a Bird Con- to name a few, interbreeding between European wild- servation Perspective’, 1 Yearbook of Polar Law (2009), 401; and A. cats (Felis silvestris) and stray domestic cats (Felis Trouwborst, R. Caddell and E. Couzens, ‘To Free or Not to Free? catus), and between native falcon species, such as State Obligations and the Rescue and Release of Marine Mammals: peregrine (Falco peregrinus) and saker falcon (Falco A Case Study of “Morgan the Orca” ’, 2:1 Transnational Environmen- cherrug), and captive-bred hybrid falcons that have tal Law (2013), 117. 12 See C. Vilà and R.K. Wayne, ‘Hybridization between Wolves and been (accidentally or intentionally) released into the Dogs’, 13:1 Conservation Biology (1999), 195; L. Boitani, Action Plan wild. Examples from the ‘wild x exotic’ category include for the Conservation of the Wolves (Canis lupus) in Europe, Nature hybridization between native red deer (Cervus elaphus) and Environment 113 (Council of Europe, 2000) (‘Action Plan’); Inter- and sika deer (Cervus nippon) introduced from China, national Union for Conservation of Nature (IUCN) Wolf Specialist and between native white-headed ducks (Oxyura Group, Manifesto on Wolf Conservation (adopted 1973, revised 2000), at paragraph 12; E. Randi and V. Lucchini, ‘Detecting Rare leucocephala) and introduced American ruddy ducks Introgression of Domestic Dog Genes into Wild Wolf (Canis lupus) (Oxyura jamaicensis). Populations by Bayesian Admixture Analyses of Microsatellite Varia- tion’, 3:1 Conservation Genetics (2002), 31; P. Ciucci, V. Lucchini, L. There is apparent merit in utilizing one (or several) Boitani and E. Randi, ‘Dew-claws in Wolves as Evidence of Admixed selected species to guide analyses of international legal Ancestry with Dogs’ 81:12 Canadian Journal of Zoology (2003), 2077; A. Verardi, V. Lucchini and E. Randi, ‘Detecting Introgressive Hybrid- instruments. In particular, this approach adds a certain ization between Free-ranging Domestic Dogs and Wild Wolves depth to the analysis, illustrates its practical relevance, (Canis lupus) by Admixture Linkage Disequilibrium Analysis’ 15:10 and quite simply tends to be less boring than more Molecular Ecology (2003) 2845; L. Boitani, ‘Wolf Conservation and Recovery’, in: D. Mech and L. Boitani (eds.), Wolves: Behavior, Ecology and Conservation (University of Chicago Press, 2003), 317, a breeding bird in Spain, where it seems prone to hybridizing with at 330–331; J. Linnell, V. Salvatori and L. Boitani, Guidelines for native European common buzzards (Buteo buteo). On the legal Population Level Management Plans for Large Carnivores, Large issues arising from this instance, see A. Trouwborst, ‘Transboundary Carnivore Initiative for Europe Report (European Commission, 2008), Wildlife Conservation in a Changing Climate: Adaptation of the Bonn at 77–78; R. Godinho et al., ‘Genetic Evidence for Multiple Events of Convention on Migratory Species and Its Daughter Instruments to Hybridization between Wolves and Domestic Dogs in the Iberian Climate Change’, 4:3 Diversity (2012), 258, at 262 and 278. Peninsula’, 20:24 Molecular Ecology (2011), 5154; M. Hindrikson 9 Convention on the Conservation of European Wildlife and Natural et al., ‘Bucking the Trend in Wolf-Dog Hybridization: First Evidence Habitats (Bern, 19 September 1979; in force 1 November 1983) from Europe of Hybridization between Female Dogs and Male (‘Bern Convention’). Wolves’, 7:10 PLOS ONE (2012), 1; Large Carnivore Initiative for 10 Directive 92/43/EEC of 21 May 1992 on the Conservation of Europe, A Manifesto for Large Carnivore Conservation in Europe Natural Habitats and of Wild Fauna and Flora, [1979] OJ L206/7 (LCIE, 2013), at 7. (‘Habitats Directive’). The EU Wild Birds Directive (Directive 2009/ 13 For some examples, and to gain an impression of the current state 147/EC of 30 November 2009 on the Conservation of Wild Birds, of the knowledge on wolf-dog hybridization in Europe, see M. [2010] OJ L20/7) remains largely unaddressed, as analyzing it would Hindrikson et al., n. 12 above; and R. Godinho et al., n. 12 above. make the article unduly sizeable. In any event, the conclusions drawn 14 See E. Randi and V. Lucchini, n. 12 above; P. Ciucci et al.,n.12 below regarding the Habitats Directive are expected to apply, by and above; A. Verardi, V. Lucchini and E. Randi, n. 12 above; and R. large, to the Birds Directive as well. Godinho et al., n. 12 above.
© 2014 John Wiley & Sons Ltd 2 RECIEL •• (••) 2014 LEGAL STATUS OF WOLF-DOG HYBRIDS the wild wolf population.15 The nature of the wolf-dog Bern Convention, and to some extent ‘other relevant problem, the measures to prevent and remedy it, and rules’. In a context such as the present, the latter may the associated legal questions, are representative of refer to treaties such as the Convention on Biological other hybridization issues in the ‘wild x domestic’ Diversity (CBD),21 the Convention on Trade in Endan- domain and, to a large degree, also in the ‘wild x exotic’ gered Species (CITES),22 the Convention on Migratory domain.16 The many and varied country-specific reser- Species (CMS)23 and several of its ancillary instru- vations and exceptions, and concomitant different legal ments, and regional instruments such as the moun- status, applying to the wolf under the Bern Convention tain treaty regimes concerning the Alps24 and the and the Habitats Directive, make this species especially Carpathians.25 As regards the Habitats Directive, perti- suitable for present purposes – the analysis of wolf-dog nent case law of the European Court of Justice (ECJ) is hybridization entails the comprehensive examination utilized – the Court has the final say when it comes to of all different protection regimes that may apply to interpreting EU law – as well as guidance adopted by animal species under these instruments. the European Commission. In addition, it is kept in mind that the Directive serves the implementation The article employs standard international and EU law within the EU of the Bern Convention (to which all EU research methodology. Accordingly, its aim is pursued Member States and the EU itself are contracting chiefly through the identification of relevant provisions parties), and must therefore be interpreted consistently and their interpretation with respect to the hybridiza- with that Convention. tion problem, using the generally applicable rules of international and EU law regarding interpretation. The The analysis below is structured along the lines of the basic rule, as codified in the Vienna Convention on the traditional distinction between generic species protec- Law of Treaties,17 is that a treaty ‘shall be interpreted in tion and area protection, whereby the main focus is on good faith in accordance with the ordinary meaning to the former. Within the field of generic species protec- be given to the terms of the treaty in their context and in tion, a distinction is made between ‘passive’ species the light of its object and purpose’.18 Furthermore, protection (a system of prohibitions and exceptions) account shall be taken, inter alia, of ‘any subsequent and ‘active’ species protection (active measures which agreement between the parties regarding the interpre- are typically, but not necessarily, part of species protec- tation of the treaty or the application of its provisions’; tion plans). Passive species protection is addressed in ‘any subsequent practice in the application of the treaty the second and fifth sections of this article, active which establishes the agreement of the parties regard- species protection in the third section, and area protec- ing its interpretation’; and ‘any relevant rules of inter- tion in the fourth. The sixth and last section offers con- national law applicable in the relations between the cluding remarks and recommendations. parties’.19 Of particular interest for present purposes is the potential influence of stated objectives (‘object and purpose’), subsequent decisions adopted by treaty 20 THE LEGAL STATUS OF HYBRIDS: bodies, in particular the Standing Committee of the PASSIVE SPECIES PROTECTION
15 See L. Boitani, Action Plan, n. 12 above; J. Linnell, V. Salvatori and Under the Bern Convention, depending on the party L. Boitani, n. 12 above. 16 Very different conclusions may apply in cases of natural hybridiza- concerned, the wolf is (i) a ‘strictly protected fauna tion between two native wild (sub)species. In such scenarios it will, furthermore, be relevant whether both species concerned are inter- A. Trouwborst, ‘Conserving European Biodiversity in a Changing nationally protected ones, or only one of them. Climate: The Bern Convention, the European Union Birds and Habi- 17 Convention on the Law of Treaties (Vienna, 23 May 1969; in force tats Directives and the Adaptation of Nature to Climate Change’, 20:1 27 January 1980) (‘Vienna Convention’). On treaty interpretation Review of European Community and International Environmental generally, see R. Gardiner, Treaty Interpretation (Oxford University Law (2011), 62, at 66–67. Press, 2008). 21 Convention on Biological Diversity (Rio de Janeiro, 5 June 1992; in 18 Vienna Convention, n. 17 above, Article 31.1. force 29 December 1993). 19 Ibid., Article 31.3. 22 Convention on International Trade in Endangered Species of Wild 20 On the potential of such decisions to serve as ‘subsequent agree- Fauna and Flora (Washington, DC, 3 March 1973; in force 1 July ment’ or ‘subsequent practice’ in the context of treaty interpretation 1975). see, e.g., R. Churchill and G. Ulfstein, ‘Autonomous Institutional 23 Convention on the Conservation of Migratory Species of Wild Arrangements in Multilateral Environmental Agreements: A Little- Animals (Bonn, 23 June 1979; in force 1 November 1983). noticed Phenomenon in International Law’, 94:4 American Journal of 24 Convention on the Protection of the Alps (Salzburg, 7 March 1991; International Law (2000), 623, at 641; J. Verschuuren, ‘Ramsar Soft in force 6 March 1995); and Protocol on the Implementation of the Law is Not Soft at All: Discussion of the 2007 Decision by the Alpine Convention of 1991 relating to the Conservation of Nature and Netherlands Crown on the Lac Ramsar Site on the Island of the Countryside (Chambéry, 20 December 1994; in force 18 Decem- Bonaire’ (2008), found at:
© 2014 John Wiley & Sons Ltd 3 ARIE TROUWBORST RECIEL •• (••) 2014 species’ under Appendix II; (ii) a ‘protected fauna among the prohibited items included in this fourth species’ under Appendix III; or (iii) neither.26 This Appendix. The Convention allows parties to grant patchwork of legal regimes is the result of 13 contracting exemptions from the above prohibitions only when the parties having availed themselves of the possibility to following three cumulative conditions are met: (i) the submit a reservation regarding the wolf when joining the exception is made for one of the purposes stated in Convention.27 As by default the wolf is listed on Appen- Article 9;33 (ii) there is ‘no other satisfactory solution’; dix II of the Bern Convention, the first regime applies to and (iii) ‘the exception will not be detrimental to the all parties that did not submit a reservation. These survival of the population concerned’.34 parties ‘shall take appropriate and necessary legislative and administrative measures to ensure the special pro- In the third set of countries alluded to above, wolves tection’ of the wolf.28 In similarly unequivocal terms, the have neither Appendix II nor Appendix III status. Convention requires these parties to prohibit: This concerns Belarus, Bulgaria, the Czech Republic, Finland, Latvia, Macedonia, Poland, Slovakia, Slovenia, a) all forms of deliberate capture and keeping and delib- Turkey and the Ukraine. These contracting parties erate killing; ‘merely’ have to conform to the general obligation of b) the deliberate damage to or destruction of breeding or Article 2 to ‘maintain the population of wild fauna’ – resting sites; including wolves – ‘at, or adapt it to, a level which c) the deliberate disturbance of wild fauna, particularly corresponds in particular to ecological, scientific and during the period of breeding, rearing and hibernation insofar as disturbance would be significant in relation cultural requirements, while taking account of eco- to the objectives of this Convention; nomic and recreational requirements and the sub- d) ...; species, varieties or forms at risk locally’. e) the possession of and internal trade in these animals, alive or dead, including stuffed animals and any readily Domestic dogs clearly do not classify as ‘wild fauna’, and recognisable part of derivative thereof, where this obviously do not figure in either of the Convention’s would contribute to the effectiveness of the provisions appendices. The Explanatory Report to the Convention 29 of this article. emphasizes with respect to the Convention’s scope that the use of ‘[t]he word “wild” before flora and fauna is In accordance with reservations submitted by Lithu- meant to exclude animals or plants stemming from bred ania and Spain, wolves count as Appendix III animals in or cultivated stocks’.35 The Bern Convention’s generic respect of these countries. Therefore, these two States species protection duties, as just reviewed, thus clearly are under a duty to ‘take appropriate and necessary do not apply to dogs. They do apply to wolves – although legislative and administrative measures to ensure the arguably not to wolves born and raised in captivity. None 30 protection’ (without the adjective ‘special’) of the wolf. of the above or other provisions in the Convention, As a consequence, the system of prescribed prohibi- however, make clear to what extent those duties apply in tions as just reproduced does not apply. Any exploita- respect of (free-ranging) hybrids between wolf and dog. tion of wolves in Lithuania and Spain, however, ‘shall Neither has any express guidance on this count been be regulated in order to keep the populations out of provided by the Standing Committee, or in the Explana- danger’, for example through closed seasons and regu- tory Report. Before trying to answer the question of the 31 lation of trade. In respect of animals from Appendices position of hybrids under the Bern Convention by other II and III, parties ‘shall prohibit the use of all indis- means, this section first looks at the species protection criminate means of capture and killing and the use of all obligations imposed by the Habitats Directive. means capable of causing local disappearance of, or serious disturbance to, populations’, and in particular 32 Within the 28 EU Member States, the above Bern Con- ‘the means specified in Appendix IV’. Snares, poi- vention obligations are accompanied – and imple- soned baits and (semi-)automatic weapons figure mented – by the generic species protection provisions of the Habitats Directive. The Directive aims for the 26 For general analyses of the relevance of the Bern Convention and maintenance, or restoration, of a ‘favourable conserva- the Habitats Directive for wolves and other European large carni- vores, see A. Trouwborst, ‘Managing the Carnivore Comeback: Inter- national and EU Species Protection Law and the Return of Lynx, Wolf 33 These include, e.g., ‘public health and safety’, ‘research and edu- and Bear to Western Europe’, 22:3 Journal of Environmental Law cation’ and the prevention of ‘serious damage to crops, livestock, (2010), 347; and Y. Epstein, ‘Population Based Species Management forests, fisheries, water and other forms of property’. Ibid., Article 9. across Legal Boundaries: The Bern Convention, Habitats Directive 34 Ibid., Article 9.1. and the Gray Wolf in Scandinavia’, 25 Georgetown International 35 Ad Hoc Committee for the Protection of Wildlife, Explanatory Environmental Law Review (2013, forthcoming). Report concerning the Convention on the Conservation of European 27 Bern Convention, n. 9 above, Article 22. Wildlife and Natural Habitats (Council of Europe, 1979), at paragraph 28 Ibid., Article 6 (emphasis added). 18. This document was written by the ad hoc committee that drafted 29 Ibid. the text of the Convention. It contains explanations that can contribute 30 Ibid., Article 7. to a proper understanding of the treaty text, although the report is 31 Ibid. expressly not to be regarded as an authoritative interpretation source. 32 Ibid., Article 8. Ibid., at paragraph II.
© 2014 John Wiley & Sons Ltd 4 RECIEL •• (••) 2014 LEGAL STATUS OF WOLF-DOG HYBRIDS tion status’ for the species and habitat types of ‘Com- answer to this question is of evident importance both munity interest’, which are listed in annexes. Due to a from a legal and from a practical management point of number of country-specific exceptions, one out of two view. As already hinted at above, textual interpretation distinct species protection regimes will apply to wolves of the Convention and the Directive does not provide under the Directive. This varies from one (part of a) the answer. Neither instrument states clearly that country to the next. Wolves are listed by default in hybrids living in the wild are covered by the prescribed Annex IV as a ‘strictly protected species’, and this prohibitions. Conversely, they do not state in so many regime applies in most Member States. However, words either that the scope of these prohibitions is wolves count as Annex V species, with the associated restricted to 100% genetically pure specimens of the more flexible regime, in Bulgaria, Estonia, Latvia, species involved. Lithuania, Poland, Slovakia, and parts of Greece (south of the 39th parallel), Finland (reindeer management Clearly, the purpose of both the Convention and the area) and Spain (north of the Duero River). For animal Directive is to protect wolves, not to protect wolf-dog species listed in Appendix IV, Article 12 of the Habitats hybrids – quite the contrary. An interpretation that Directive requires EU Member States to ‘take the req- would, at first sight, appear to conform to this state of uisite measures to establish a system of strict protec- affairs, would be to consider hybrids as not included tion’.36 As under the Bern Convention, this entails an within the scope of the strict protection requirements. obligation to establish prohibitions on, inter alia, the That the drafters of the Convention and the Directive killing, capturing and disturbing of individual animals did not expressly include hybrids within this scope belonging to such species, and on the ‘deterioration or might be taken as an indication that they did not intend destruction of breeding sites or resting places’.37 The for them to be covered, although this is not certain. jurisprudence of the European Court of Justice makes it Other than that, there is little to support this interpre- clear that Member States must not only prohibit the tation, however. The research conducted for this article acts in question, but also take all measures necessary to did not, in any case, yield any concrete indications in ensure that the prohibitions concerned are not violated support of this interpretation in relevant case law, guid- in practice.38 As with the Bern Convention, certain ance adopted by the Standing Committee or European means of capture and killing are to be prohibited in Commission, or other international legal instruments. respect of species from Annexes IV and V.39 Exemptions Indeed, if this interpretation were correct, wolves with from the above prohibitions (‘derogations’) may be even the tiniest fraction of domestic dog DNA, and granted, but only when all of three specific conditions wildcats with even a remote domestic cat influence in are met, which approximate those set out in the Con- their genetic signatures, would be excluded from pro- vention, mentioned above.40 Unlike the wolf, in parallel tection – an apparently untenable position. A compari- to the Bern Convention, domestic dogs do not qualify as son with the Przewalski’s horse (Equus przewalskii) ‘species of Community interest’ and are therefore not can serve to illustrate this point.42 Whereas it is known covered by the Habitats Directive. The Directive is that a degree of hybridization with the domestic horse silent, again like the Convention, on the position of (Equus caballus) is prevalent throughout the entire crosses between the two. Likewise, hybridization is not population of this species,43 this has not stood in the addressed in so many words in the jurisprudence of the way of its legal protection, including under interna- European Court of Justice, or in the European Commis- tional wildlife instruments – the Przewalski’s horse is sion’s general guidance document on the strict protec- listed in CITES Appendix I. tion of animal species.41 An alternative interpretation, that is not prone to this The main question to be answered here in respect of problem, would be to consider wild-born hybrids as both the Bern Convention and the Habitats Directive is included within the scope of strict protection require- whether or not wild-born hybrid specimens must be ments under the Bern Convention and Habitats Direc- considered subject to the protection requirements in tive. Notably, this interpretation starts from the same respect of wolves in those (parts of) countries where the basis as the previous interpretation – namely the strict protection regimes apply, in particular the pre- purpose of the Convention and the Directive to protect scribed prohibitions of killing and capturing. The wild fauna, in this case wild wolves. The subsequent reasoning, however, is different, and produces a differ- 36 Habitats Directive, n. 10 above, Article 12.1. ent outcome. A good example of this reasoning can be 37 Ibid. found in the Large Carnivore Initiative for Europe 38 ECJ, Case C-103/00, Commission v. Greece, [2002] ECR I-1147; ECJ, Case C-518/04, Commission v. Greece, [2006] ECR I-42; and ECJ, Case C-221/04, Commission v. Spain, [2006] ECR I-4515. 42 See also F.W. Allendorf et al., n. 1 above, at 618. 39 Habitats Directive, n. 10 above, Article 15 and Annex VI. 43 One of the 13 founding animals of the current Przewalski’s horse 40 Ibid., Article 16. population was a domestic horse mare. See O.A. Ryder, ‘Genetic 41 European Commission, Guidance Document on the Strict Protec- Studies of Przewalski’s Horses and their Impact on Conservation’, in: tion of Animal Species of Community Interest under the Habitats L. Boyd and K.A. Houpt (eds.), Przewalski’s Horse (State University Directive 92/43/EEC (European Commission, 2007). of New York Press, 1994), 75.
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(LCIE) ‘Policy Support Statement’ on hybridization that treaty demand that the former interpretation should be is annexed to the Guidelines for Population Level Man- adopted.48 agement Plans for Large Carnivores (‘Carnivore Guide- 44 lines’). The statement expressly pleads for wolf-dog There is, moreover, further evidence to indicate that hybrids to receive ‘the same legal status as wolves from this second interpretation is the correct one. First, hunters and the public in order to close a potential although in its case law the European Court of Justice 45 loophole for the irregular killing of wolves’. Indeed, if has not expressly addressed the issue of hybridization, hybrids were to be considered legally unprotected, it is there is an apparent parallel between the above reason- easy to see how this could lead to increased killing of ing concerning the legal status of wolf-dog hybrids and wolves, given the difficulty of distinguishing hybrids the reasoning of the Court in a case regarding the pro- from genetically ‘pure’ wolves. This might involve not tection of bird subspecies. In this judgment, the Court only accidental but also intentional killing, as the adopted a similarly expansive interpretation of the unprotected status of hybrids might be used as a cover scope of protection provisions from the Wild Birds for killing actual wolves. (Whether the defence ‘I Directive,49 in order to avoid uncertainties and poten- thought I was shooting a hybrid’ is used in good faith or tial weakening of the protection offered to birds not makes little difference to the outcome.) Besides, by those provisions.50 This concerned the question and related to this, if hybrids were to be considered whether subspecies which naturally occur exclusively unprotected, this could pose a serious obstacle for the outside Europe are still protected under the Directive if prosecution of people for the illegal killing of wolves, the species involved is covered by the Directive. The given the applicable standards of proof in criminal pro- Court concluded that they are.51 ‘[I]f the scope of the ceedings. Haig and others have described this same Directive were to be limited to those subspecies which problem in the context of the United States Endangered occur within European territory and did not extend to Species Act (ESA) with regard to the spotted owl (Strix non-European subspecies,’ so the Court held, it would occidentalis): be ‘difficult to implement the Directive in the Member [L]ack of specific legal protection for hybrids under the States’, which would in turn ‘run counter to the aim of 52 ESA may constitute an indirect threat for Spotted Owls and providing effective protection for European avifauna’. other listed species with similar hybrid issues. Presently, Of course, that such non-European subspecies are without reliable molecular markers, individuals involved in covered by the required prohibitions means just that. It killing (i.e., ‘take’ defined in ESA section 2) a Spotted Owl clearly does not mean that States are under an obliga- may escape prosecution under the ESA by claiming that the tion to achieve a favourable conservation status or bird in question was a hybrid when in fact it was a Spotted similar objective for such non-European subspecies. 46 Owl. (That would indeed be absurd, given the absence in the wild within their territories of the subspecies involved.) Recently, in Germany, a hunter was prosecuted who Likewise, considering wolf-dog hybrids as being had shot a wolf, allegedly because he took it for a dog covered by the Bern Convention’s and Habitats Direc- when he pulled the trigger. In court, his lawyer actually tive’s passive species protection requirements means argued – unsuccessfully, in the end – that the animal just that. It evidently does not entail an obligation (e.g., 47 was a hybrid and therefore unprotected. under Article 2 of either instrument) to achieve a par- ticular conservation status for wolf-dog hybrids – quite It can thus clearly be held that the scope of the strict the contrary. protection requirements laid down in Article 6 of the Bern Convention and Article 12 of the Habitats Direc- tive, when viewed in light of the objective of effective Second, in terms of non-binding but indicative guid- wild fauna conservation, should be interpreted as ance, it is of some significance that the Carnivore including wolf-dog hybrids living in the wild. As the Guidelines, to which the LCIE Policy Support State- United Nations International Law Commission has ment on hybrids cited above is annexed, have been stated in this regard: When a treaty is open to two interpretations one of which 48 Yearbook of the International Law Commission, Volume II (UN Doc. does and the other does not enable the treaty to have appro- A/CN.4/SER.A/1966/Add.l, 1966), at 219. priate effects, good faith and the objects and purposes of the 49 Directive 2009/147/EC, n. 10 above. 50 ECJ, Case C-202/94, Van der Feesten, [1996] ECR I-355. 44 See J. Linnell, V. Salvatori and L. Boitani, n. 12 above. 51 From the Directive’s overall objective and the use of the term 45 Ibid., at 78. ‘species’, the Court deduced that ‘if a subspecies occurs naturally in 46 S.M. Haig et al., ‘Genetic Identification of Spotted Owls, Barred the wild in the European territory of the Member States to which the Owls and their Hybrids: Legal Implications of Hybrid Identity’, 18:5 Treaty applies, the species to which the subspecies belongs must be Conservation Biology (2004), 1347, at 1355. considered to be a European species and, consequently, all the other 47 Amtsgericht Montabaur, Pressemeldung: Strafprozess um subspecies of the species in question, including those which are not Getöteten Wolf im Westerwald (17 January 2013); C. Schultz, European, will be covered by the Directive’. Ibid., at paragraph 12 ‘Erschossener Wolf: Jäger Muss 3500 Euro Strafe Zahlen’, Ham- (emphasis added). burger Abendblatt (17 January 2013). 52 Ibid., at paragraph 16.
© 2014 John Wiley & Sons Ltd 6 RECIEL •• (••) 2014 LEGAL STATUS OF WOLF-DOG HYBRIDS endorsed by both the European Commission53 and the Convention and Article 12 of the Habitats Directive is to Bern Convention Standing Committee.54 An additional, be understood as including wild-born wolf-dog hybrids. more indirect pointer is contained in the European In particular, Bern Convention contracting parties and Action Plan for Wolves that was adopted by the Stand- EU Member States where wolves have Appendix II ing Committee in 2000.55 Its section on hybridization and/or Annex IV status, must be deemed to be under a does not expressly address the legal status of wolf-dog legal duty to prohibit the killing, capturing and so on of hybrids. It does, however, contain a warning of a famil- wolves and of free-ranging wolf-dog hybrids within iar kind when discussing the control of feral and stray their respective jurisdictions, and to enforce these pro- dogs: ‘It is not acceptable to allow everybody to kill hibitions. Whereas taken in isolation this position may these dogs because wolves will be also killed (for come across as counter-intuitive – similar to the pro- example if shepherds were allowed to do it).’56 If this tected status of non-European subspecies under the risk already exists in respect of feral dogs, then all the Birds Directive and of hybrids under CITES – the closer more so in respect of wolf-dog hybrids. inspection above appears to leave little room for a dif- ferent conclusion. Third, regarding other relevant international legal instruments, it is instructive to consider the approach Even if the above analysis plainly points to this second adopted within the framework of CITES. The purpose interpretation as the most plausible, absolute legal cer- of this global wildlife treaty is to protect wild flora and tainty will not exist until the Standing Committee (in fauna from adverse impacts resulting from interna- the case of the Bern Convention) or the ECJ (in the case tional trade. To ensure the effective protection of the of the Habitats Directive) take express positions on the wild species involved, which are listed in appendices to issue. One obvious recommendation flowing from the the Convention, and to avoid loopholes in the system of above is for the Standing Committee to do so by adopt- protection, the CITES Conference of the Parties (COP) ing an interpretive statement with regard to hybridiza- has adopted a common interpretation regarding the tion (whether generally or with regard to wolf-dog position and treatment of hybrids – that is, crosses hybrids), as it has done in the past regarding other between species protected under the Convention and issues.61 With regard to the Habitats Directive, a role other species.57 The reasoning behind the COP Resolu- appears to be reserved for the European Commission.62 tion in question is similar to that in the ECJ ruling and Guidance adopted by the Commission is not legally LCIE Policy Support Statement discussed above – binding, but the Court of Justice has hitherto often namely that ‘trade in hybrids of species included in the relied on such guidance in its decisions, as have Appendices should be controlled in order to support the Member States in their domestic application of EU law. controls on trade in the species included in Appendices There thus appears to be considerable merit in the I and II’.58 To that end, the COP decided that ‘hybrid adoption of express guidance by the Commission, along animals that have in their recent lineage one or more the lines sketched above, to clarify the legal position of specimens of species included in Appendix I or II shall hybrids under the Directive. An excellent opportunity be subject to the provisions of the Convention just as if to do so is the EU Action Plan on wolves that is cur- they were full species, even if the hybrid concerned is rently being developed under auspices of the European not specifically included in the Appendices’.59 The COP Commission. An essential element of any such guid- also adopted a rough definition of what is to be under- ance, whether adopted by the Bern Convention Stand- stood as a hybrid in this context, by indicating that ‘as a ing Committee or the European Commission, would be guideline, the words “recent lineage”, as used in this the definition of what precisely is to be understood as a Resolution, shall generally be interpreted to refer to the (wolf-dog) ‘hybrid’. previous four generations of the lineage’.60 Although national laws and policies are not to be con- Taken together, the above considerations appear to lead sidered solid indicators concerning the correct inter- to the conclusion that the scope of the passive protec- pretation of international rules, it would evidently be tion requirements laid down in Article 6 of the Bern interesting to investigate and compare how (wolf-dog) hybrids are currently treated in the relevant domestic 53 European Commission, Note to the Guidelines for Population Level legislation of European countries. In the Netherlands’ Management Plans for Large Carnivores (1 July 2008), found at:
© 2014 John Wiley & Sons Ltd 7 ARIE TROUWBORST RECIEL •• (••) 2014 the Act to comply with CITES regulations.63 This entails Appendix II. The following will in particular be prohibited that any wolf-dog hybrids in the Netherlands would fall for these species: [etc]. within the scope of the strict protection provisions applicable to ‘pure’ wolves. In Germany, to give another It follows from the formulation of this provision that the example, hybrids similarly benefit from the same required system of prohibitions (passive species protec- strictly protected status as wolves under the Federal tion) does not necessarily exhaust the obligation to Nature Conservation Act (Bundesnaturschutzgesetz), take ‘appropriate and necessary’ measures. Where it is with the specification that this applies to hybrids up to apparent that these prohibitions alone will not suffice to the fourth generation (a criterion again apparently ensure the special protection of the species involved, the instigated by the CITES approach discussed above).64 A taking of additional action (active species protection) is more comprehensive inventory of national legislation necessary in order to comply with Article 6. Similar is, unfortunately, beyond the scope of the present considerations apply to Article 7, which is applicable to article. the ‘protection’ of wolves in those parts where they qualify as Appendix III species. Furthermore, active Even if the Standing Committee or the ECJ were in measures may be essential in order to comply with the future to adopt an interpretation whereby wild-living general duty in Article 2 – which applies to all contract- hybrids are excluded from the scope of the applicable ing parties – to take ‘requisite measures to maintain the passive species protection requirements under the Bern population of wild flora and fauna at, or adapt it to, a Convention or Habitats Directive – despite the appar- level which corresponds in particular to ecological, sci- ent problems inherent in such an interpretation – this entific and cultural requirements, while taking account would ostensibly not preclude States from prohibiting of economic and recreational requirements and the 65 the killing and capturing of (wolf-dog) hybrids under needs of sub-species, varieties or forms at risk locally’. national law. It would only mean that such national The Standing Committee has confirmed in this regard prohibitions are not directly required by the Conven- that ‘in many instances wild species which have an tion, respectively the Directive. In other words, such unfavourable conservation status (particularly those prohibitions are compatible with States’ international listed in Appendix II of the Convention) may require obligations under these legal instruments regardless of special conservation efforts to acquire a population level which of the two interpretations discussed above is which corresponds to their ecological requirements, as 66 correct. They are permissible under the one, and stated in Article 2 of the Convention’. required under the other. Whether and to what extent such active measures are Moreover, whichever way, the application of the strict necessary will obviously vary from species to species protection regimes of the Bern Convention and the and from situation to situation. In addition, Articles 6 Habitats Directives to wild-born wolf-dog hybrids – and 7 apparently leave a measure of discretion to indi- that is, the second interpretation – does not stand in the vidual contracting parties in determining what are the way of the government-controlled removal of such ‘appropriate and necessary’ measures to ensure the hybrids from the wild, which may indeed be mandatory (special) protection of the species involved. The same is under the same two legal instruments (see below). It true in respect of the ‘requisite measures’ to maintain does entail that such removal requires the issuing of populations at, or adapt them to levels which corre- derogations from strict protection on a case-by-case spond to ecological requirements, as required by Article basis (see also below). 2. Depending on the circumstances, a party’s margin of discretion may be broader or narrower. For instance, this discretionary room will shrink if the best scientific data available clearly indicate that a particular type of ADDRESSING HYBRIDIZATION: conservation action is necessary. Likewise, when the ACTIVE SPECIES PROTECTION Standing Committee has expressly pointed out that a specific course of action is imperative for a given species Article 6 of the Bern Convention reads as follows: 65 What the ‘level’ referred to in Article 2 precisely amounts to is not Each Contracting Party shall take appropriate and necessary defined in any more detail in either the Convention or the Explanatory legislative and administrative measures to ensure the Report. Much will thus depend on the circumstances and the posi- special protection of the wild fauna species specified in tions taken by contracting parties in each case, although it is probably safe to assume that species should at a minimum be conserved with a view to avoiding them being listed under the Red List of the IUCN. 63 Wet van 25 mei 1998 houdende Regels ter Bescherming van in het The formulation of Article 2 also appears to suggest that conservation Wild Levende Planten- en Diersoorten (Staatsblad 1998, 402), Article considerations will outweigh socio-economic ones in case of irrecon- 1.2. cilable conflict between the two. See also M. Bowman, P. Davies and 64 See, e.g., LANA, Vollzugshinweise zum Artenschutzrecht (version C. Redgwell, n. 20 above, at 299–300. November 2010), at 28–29; and Staatsministerium für Umwelt und 66 Standing Committee Recommendation No. 59 (1997) on the Draft- Landwirtschaft der Freistaates Sachsen, Managementplan für den ing and Implementation of Action Plans of Wild Fauna Species, Wolf in Sachsen (2009), at 26. preamble.
© 2014 John Wiley & Sons Ltd 8 RECIEL •• (••) 2014 LEGAL STATUS OF WOLF-DOG HYBRIDS in a concrete instance, then that is arguably what a should be discouraged’.73 As regards mitigation, the contracting party involved must do to implement its Action Plan draws attention to the difficulty of identi- obligations under the Convention in good faith – unless fying hybrids in the wild, but proposes their removal in that party can come up with a different course of action case of such identification.74 The Standing Committee that is demonstrably capable of achieving the same has declared that it considers the actions proposed in level of protection. the Plan as ‘guidelines for competent national authori- ties’.75 In a 2012 Recommendation on ‘large carnivore Depending on the circumstances, the taking of preven- populations in Europe requesting special conservation tive and mitigation action to address hybridization may action’ the Standing Committee specifically focused on thus be mandatory under the Convention. An example the wolf-dog hybridization problem in Italy.76 The Rec- where this clearly seems to be the case involves the ommendation calls on Italy to pursue ‘efforts to control white-headed duck. As one of the Standing Committee hybrids, drafting and implementing a strategy aimed to Recommendations that have been adopted in respect of reduce progressively the genetic pollution affecting wolf this species states, ‘the main threat to the long-term in Italy’.77 survival of the species is its hybridisation with Ameri- can Ruddy Ducks Oxyura jamaicensis introduced in Switching to EU law, the Habitats Directive stipulates Europe’.67 The Recommendation, adopted in 2010, in general terms that all measures taken by EU urges parties to ‘[i]mplement without delay the actions’ Member States pursuant to the Directive ‘shall be specified in an appended Action Plan.68 This Plan aims designed to maintain or restore, at favourable conser- for the eradication of all ruddy ducks and hybrids vation status, natural habitats and species of wild between the two species in the wild by 2015 and the fauna and flora of Community interest’.78 This provi- phasing out of all captive ruddy duck and hybrid popu- sion also informs the generic species protection lations by 2020, setting out various actions to achieve requirements laid down in Article 12. The European this.69 This generic Action Plan is accompanied in the Commission has submitted in its guidance document Recommendation by a set of specific actions recom- on strict protection that: mended to certain ‘priority states’. To pick one instance, Article 12 does not, in itself or in conjunction with Article 2, Spain is called on to ‘continue its current policy to oblige Member States to take proactive habitat management eradicate every single Ruddy Duck or hybrid detected in measures. What is required are measures to effectively 70 its territory’. implement the prohibitions of Article 12. . . . However, for some species and in some situations, the adoption and Whereas the wolf-dog hybridization problem is differ- implementation of purely prohibitive measures may not be ent from the white-headed duck problem and probably sufficient, and may not guarantee effective implementation not as urgent, the removal of wolf-dog hybrids is clearly of Article 12. In such cases, Article 12 requires the adoption in line with the Bern Convention provisions reviewed and implementation of preventive measures.79 above. What is more, a good argument can evidently be made that where an obvious hybrid has been detected, In other words, the imposition and enforcement of the efforts to remove it from the wild population must prescribed prohibitions will not in all cases be suffi- be considered mandatory. Comparable considerations cient in order to comply with Article 12. Also accord- apply to preventive measures concerning captive wolf- ing to the European Court of Justice, the first dog hybrids and the control of feral and stray dogs. To paragraph of Article 12 ‘requires the Member States what extent these measures are to be considered obliga- not only to adopt a comprehensive legislative frame- tory will again depend on the circumstances. work but also to implement concrete and specific pro- tection measures’.80 Moreover, the prescribed ‘system Hybridization is addressed to some degree in the Bern of strict protection’ of Annex IV species presupposes Convention Action Plan for Wolves adopted in 2000. the ‘adoption of coherent and coordinated measures of 81 The Plan cites feral and stray dogs as ‘a danger for the a preventive nature’. Both the Court and the Com- wolf’ on account of the risk of hybridization.71 According mission recommend species action plans, ‘on condi- to the Plan, ‘it appears necessary to remove these feral and stray dogs’.72 It calls for law reform, where needed, 73 Ibid., at paragraph 4.7.6. 74 to achieve this. Also, the keeping of wolf-dog hybrids as Ibid. 75 Standing Committee Recommendation 74 (1999) on the Conser- pets ‘should not be allowed anymore and crossbreeding vation of Large Carnivores, preamble. 76 Standing Committee Recommendation 162 (2012) on the Conser- 67 Standing Committee Recommendation 149 (2010) on the Eradica- vation of Large Carnivores Populations in Europe Requesting Special tion of the Ruddy Duck (Oxyura jamaicensis) in the Western Conservation Action. Palaearctic, preamble. 77 Ibid., at paragraph 2. 68 Ibid., at paragraph 1. 78 Habitats Directive, n. 10 above, Article 2.2. 69 Ibid., Appendix. 79 European Commission, n. 41 above, at 28. 70 Ibid., at paragraph 5. 80 ECJ, Case C-183/05, Commission v. Ireland, [2007] ECR I-137, at 71 See L. Boitani, Action Plan, n. 12 above, at paragraph 4.7.5. paragraph 29. 72 Ibid. 81 Ibid., at paragraph 30.
© 2014 John Wiley & Sons Ltd 9 ARIE TROUWBORST RECIEL •• (••) 2014 tion that they are correctly established and applied’, as where they have Annex V status.89 These conclusions are effective means of implementing the requirements of in line with the prior analysis of the Bern Convention. Article 12.82 Without such plans or similarly compre- hensive and species-specific measures, ‘the system of They are reinforced, furthermore, by the way the issue strict protection contains gaps’ amounting to a viola- is dealt with in the Policy Support Statement, annexed tion of the Habitats Directive.83 For example, in a case to the Carnivore Guidelines, entitled ‘Response to concerning hamsters in France, the Court determined hybridization between wild wolves and domestic that ‘by failing to establish a programme of measures dogs’.90 The detailed guidance set out therein includes to ensure strict protection of the European hamster the following: (Cricetus cricetus), the French Republic has failed to fulfil its obligations under Article 12(1)(d) of the Habi- Everything possible should be done to minimise the risk of hybridisation between wolves and dogs. This requires that tats Directive’ regarding breeding sites and resting 84 the keeping of wolves and wolf-dog hybrids as pets be pro- places. For many strictly protected species, a com- hibited, discouraged, or at least carefully regulated, and that prehensive and focused set of measures will thus strong actions be taken to minimise the numbers of feral and be required under EU law, with species protection stray dogs. plans being the recommended vehicles to give this shape.85 Everything practically possible should be done to remove obvious hybrids from the wild should such an event occur and be detected. In reality this will be most effectively Furthermore, Article 11 obliges Member States to achieved through lethal control, as the chances of selectively guarantee that surveillance of the conservation status live capturing all the specific members of a hybrid pack are of Annex IV species ‘is undertaken systematically and minimal. Furthermore, the welfare issues associated with on a permanent basis’.86 Such surveillance is consid- keeping wild-born hybrids in captivity must be considered – ered a necessary ingredient of the strict protection as it is almost inevitable that they will be captured after the system of Article 12.87 After all, effective conservation period when they can potentially be socialised towards is, to cite Advocate-General Léger, only possible with humans. ‘detailed knowledge of each species, its breeding sites It is important that management authorities clarify their and resting places, and the potential threats it may legislation concerning the legal status of wild-born wolf-dog face’.88 In the case of the wolf, these threats include hybrids. Their management status should be such that they hybridization with domestic dogs. Incidentally, con- receive the same legal status as wolves from hunters and the servation status surveillance under Article 11 is to have public in order to close a potential loophole for the irregular ‘particular regard to . . . priority species’ – a status killing of wolves – but such that they can be effectively removed under special license by carefully trained govern- that has, among other species, been bestowed upon ment appointed wardens when necessary. . . . the wolf. When removing potential hybrids from the wild it is crucial that all staff are familiar with the physical characteristics of Evidently, measures to avoid and remedy wolf-dog wolves and hybrids, and that great care be taken to not kill hybridization make a good fit with the active dimension pure wolves by mistake. A clear set of criteria should be of the ‘system of strict protection’ required under Article decided in advance. From experience F1 hybrids can gener- 12.1, as just described. For many, if not all, European ally be recognised based on morphological criteria – but wolf populations, such measures would appear integral later generations may be difficult to detect – even with to achieving and/or maintaining a favourable conserva- genetic methods. In cases where identity is unclear, it is tion status. Viewed in that light, and in light of Article 2 possible to collect scats and have them DNA tested before of the Directive, action to address hybridization is not making a management decision.91 only called for where wolves are ‘strictly protected species’, but also in those (parts) of Member States The last part of this quote draws attention to something which is evidently of the essence – namely the need for as much clarity as possible regarding what is, and what 82 Ibid., at paragraph 14. is not, to be understood as a ‘hybrid’ in the present 83 Ibid., at paragraphs 14 and 18. setting. This is crucial from a practical management 84 ECJ, Case C-383/09, Commission v. France, [2011] ECR I-4869, at paragraph 40. perspective, and equally crucial in order to achieve an 85 This active dimension of Article 12 is also discussed in H. effective and consistent application of the active and Woldendorp, Teksten en Toelichting: Wetgeving Natuurbescherming. passive species protection requirements discussed in Juridische Natuurbeschermingsaspecten van Ruimtelijke Ingrepen this article. The only pertinent guidance encountered in (Sdu Uitgevers, 2011), at 36–39; and H. Schoukens, K. De Roo and P. De Smedt, Handboek Natuurbehoudsrecht (Kluwer, 2011), at 407– 408. 89 Regarding the duties of States concerning Annex V species, see 86 ECJ, Case C-6/04, Commission v. United Kingdom, [2005] ECR also ECJ, Case C-75/01, Commission v. Luxemburg, [2003] ECR I-9017, at paragraph 68. I-1585, at paragraphs 78–80; and A. Garcia Ureta, Derecho Europeo 87 Case C-183/05, n. 80 above, at paragraph 13. de la Biodiversidad (Iustel, 2010), at 619–620. 88 Opinion of Advocate-General P. Léger of 21 September 2006, 90 See J. Linnell, V. Salvatori and L. Boitani, n. 12 above, at 77–78. Case C-183/05, at paragraph 28. 91 Ibid.
© 2014 John Wiley & Sons Ltd 10 RECIEL •• (••) 2014 LEGAL STATUS OF WOLF-DOG HYBRIDS the applicable international legal framework is the tion reasons, the removal of hybrids from the aforementioned CITES criterion.92 Applied to the population is called for.’95 Also in Finland, addressing current context of wolf-dog crosses, ‘hybrids’ would wolf-dog hybridization is formal policy. The national cover dogs ‘that have in their recent lineage one or more Management Plan for wolves states: ‘The Finnish wolf specimens’ of wolf – with ‘recent lineage’ roughly population will be kept genetically pure. Wolf-dog understood as ‘the previous four generations of the hybrids and feral dogs running in packs with wolves will lineage’.93 The application of this or a similar criterion be removed from the population.’96 could be of some use in the passive species protection context, to determine which ‘dogs with wolf blood’ would still fall under the strict species protection rules, ADDRESSING HYBRIDIZATION: and which would not. The same criterion is less useful, however, in the active species protection context, where AREA PROTECTION the main concern is countering the introgression of domestic dog genes into wolf populations. Hence, the Rules on protected areas may also be relevant in the converse question is more urgent – that is, which current context, particularly those laid down in the ‘wolves with dog blood’ count as ‘hybrids’ and should Habitats Directive. The wolf is included, as a priority therefore be removed from the wild population? From species, in Annex II of the Directive, which lists the the latter perspective, it would probably be most species for which Special Areas of Conservation 97 appropriate, in line with evolving scientific insights,94 (SACs) must be designated and protected. The only to adopt an ad hoc definition of hybrids incorporating (parts of) Member States to which this duty does not th genetics and morphology, whereby any wolf-like animal apply are Finland, Estonia, Greece (north of the 39 that can be proven (genetically) to have certain parallel), Latvia, Lithuania and Spain (north of the dog genes and/or (morphologically) to have certain Duero River). physical dog characteristics, is considered a ‘wolf-dog hybrid’. With regard to SACs, Article 6.1 of the Habitats Direc- tive requires Member States to take ‘the necessary conservation measures’ which ‘correspond to the eco- In summary, addressing hybridization through pre- 98 ventive and mitigation measures, including the logical requirements’ of the species involved. The removal of hybrid specimens from the wild, is in con- case law of the Court of Justice has clarified that formity with the obligations of States under the Bern Article 6.1 has the character of a duty of result. The Convention and the Habitats Directive, and may room for discretion that States evidently have to deter- mine what the ‘necessary’ measures are, therefore only indeed be essential in order to comply with those obli- 99 gations. It is important to signal that this conclusion concerns the means to achieve this result. Compli- applies regardless of one’s interpretation concerning ance with the obligation concerned may entail both material actions and legal/administrative measures, as the legal status of hybrids in respect of passive 100 protection requirements, discussed above. As in the appropriate. Circumstances are thus conceivable in passive species protection context, the development of which Article 6.1 requires the taking of preventive and formal guidance containing further clarification mitigation measures to address wolf-dog hybridization regarding the role of active protection require- in order to protect wolves in the SAC(s) designated for ments in addressing wolf-dog hybridization is highly them. desirable. Comparable considerations apply to Article 6.2. This provision dictates that Member States ‘shall take appro- Although, as stated previously, a comprehensive analy- priate steps to avoid’, in the SACs, ‘the deterioration of sis of national practice is beyond the scope of the . . . the habitats of species as well as disturbance of the present article, a few domestic examples are considered species for which the areas have been designated, in so here for illustrative purposes. The Management Plan of far as such disturbance could be significant in relation Saxony (Germany) takes the following position regard- to the objectives of this Directive’.101 As with Article 6.1, ing free-ranging wolf-dog hybrids: ‘For species protec-
95 Staatsministerium für Umwelt und Landwirtschaft der Freistaates 92 No guidance on hybridization could be identified in any of the Sachsen, n. 64 above, at 26 (author’s translation; the original reads: Decisions adopted hitherto by the CBD COP. ‘Aus Artenschutzgründen ist eine Entfernung von Hybriden aus der 93 CITES Resolution Conf. 10.17 (Rev. CoP14), n. 57 above, opera- Population geboten’). tive part under (a) and (d). 96 Finnish Ministry of Agriculture and Forestry, Management Plan for 94 See, e.g., M.J. Daniels et al., ‘Morphological and Pelage Charac- the Wolf Population in Finland (2005), at 54. teristics of Wild Living Cats in Scotland: Implications for Defining the 97 Habitats Directive, n. 10 above, Article 4 and Annex II. “Wildcat” ’, 244:2 Journal of Zoology (1998), 231; M.J. Daniels et al., 98 Ibid., Article 6.1. ‘Ecology and Genetics of Wild-living Cats in the North-East of Scot- 99 ECJ, Case C-166/97, Commission v. France, [1999] ECR I-1719. land and the Implications for the Conservation of the Wildcat’, 38:1 100 See, e.g., ECJ, Case C-96/98, Commission v. France, [1999] ECR Journal of Applied Ecology (2001), 146; and M.J. Daniels and I-8531. L. Corbett, n. 2 above. 101 Habitats Directive, n. 10 above, Article 6.2.
© 2014 John Wiley & Sons Ltd 11 ARIE TROUWBORST RECIEL •• (••) 2014 the prescription to take the ‘appropriate steps to avoid’ States to derogate from the passive protection duties such deterioration or disturbance in SACs has repeat- arising from the very same provisions!107) As just dis- edly been interpreted by the Court as an obligation to cussed, Article 6 of the Habitats Directive can have ‘do what it takes’. What the ‘appropriate steps’ are will similar consequences. depend on the problem at hand, but what ultimately counts is the result.102 Clearly, effective measures are to The question needs to be considered, therefore, how the be taken before adverse effects occur.103 Moreover, to removal of wolf-dog hybrids from the wild relates to the meet the requirements of Article 6.2, damage which has criteria for derogations from strict protection laid down already occurred must be undone. For instance, a 2002 in Article 9 of the Convention and Article 16 of the judgment in a case involving harm through overgrazing Directive. Both provisions set out three – differently by sheep in an Irish SAC, confirmed in this respect that phrased but essentially similar – conditions, all of ‘it is necessary for the Irish authorities not only to which must be met for a derogation to be permissible: take measures to stabilise the problem of overgrazing, but also to ensure that damaged habitats are allowed (i) the derogation is made for one of the purposes to recover’.104 The scope of the term ‘disturbance’ stated in Article 9, respectively Article 16; is broad,105 and could well encompass hybridization. (ii) there is ‘no other satisfactory solution’ (Article 9), Thus, interbreeding with domestic dogs which could be respectively ‘no satisfactory alternative’ (Article significant in terms of this provision for wolves within 16); and SACs designated for the species is to be avoided (iii) the derogation will ‘not be detrimental to the sur- through preventive measures, and hybridization which vival of the population concerned’ (Article 9), has already occurred must be remedied. respectively ‘not detrimental to the maintenance of the populations of the species concerned at a Hence, in parallel and in addition to the generic species favourable conservation status in their natural protection obligations that may apply under Article 12 range’ (Article 16). and related provisions of the Habitats Directive (and the species protection provisions from the Bern Conven- Regarding condition (i), the purpose of removing any tion), Article 6 of the Directive apparently requires detected wolf-dog hybrids from the wild will generally be Member States to pay particular attention to pertinent to serve the interest of the wild wolf population itself. It measures – for example, to control feral and stray dogs – appears that such derogations could legitimately be in and around the areas designated as SACs for wolves.106 based on the first mentioned option in both Articles 9 and 16, which respectively allow for derogations ‘for the protection of . . . fauna’108 and ‘in the interest of protect- ADDRESSING HYBRIDIZATION: ing wild fauna’.109 One may also imagine circumstances DEROGATING FROM where a wolf-dog hybrid would be removed primarily STRICT PROTECTION because of some sort of problematic behaviour displayed by it. As the LCIE Policy Support Statement reports, As concluded above, it appears that wolf-dog hybrids there is reason to believe that free-ranging wolf-dog living in the wild are to be considered as within the hybrids ‘will show more undesirable behaviours than scope of the prohibitions required under Article 6 of the pure wolves because of their inferior adaptation’, includ- Bern Convention and Article 12 of the Habitats Direc- ing a ‘greater tendency than pure wolves to attack live- tive. In countries where the former or both provisions stock and demonstrate bold behaviour’.110 In such cases, apply to wolves, removing a hybrid specimen from the the derogation could be based rather on the grounds of wild population – whether by killing or capturing it – the avoidance of serious damage to livestock, or the would thus require a derogation ex Article 9 of the Con- interest of ‘public safety’, which are mentioned in both vention and/or Article 16 of the Directive. (The reader legal instruments.111 will have noted that the active protection requirements flowing forth from Article 6 of the Bern Convention and Condition (ii) may influence the means employed for Article 12 of the Habitats Directive may thus require removing specific hybrids from the wild. In particular, the question could arise whether capture would be a satisfactory alternative for killing the animal(s) 102 For a particularly clear example, see ECJ, Case C-117/00, Com- involved. According to the LCIE Statement in the Carni- mission v. Ireland, [2002] ECR I-5335, at paragraphs 26–33. 103 This is apparent if only from the use of the term ‘avoid’ in Article 6.2. See also European Commission, Managing Natura 2000 Sites: 107 This state of affairs is not unique for the current context. Other The Provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC apparent examples include the elimination of rabid wolves and the (2000), at 24. temporary capture of wolves for monitoring purposes. 104 Case C-117/00, n. 102 above, at paragraph 31. 108 Bern Convention, n. 9 above, Article 9.1. 105 See, e.g., European Commission, n. 103 above, at 24–29. 109 Habitats Directive, n. 10 above, Article 16.1(a). 106 Such consequences do not follow as directly from Article 4 of the 110 J. Linnell, V. Salvatori and L. Boitani, n. 12 above, at 77. Bern Convention on area protection, due to the latter’s different, more 111 See Bern Convention, n. 9 above, Article 9.1; and Habitats Direc- general formulation. tive, n. 10 above, Article 16.1(b) and (c).
© 2014 John Wiley & Sons Ltd 12 RECIEL •• (••) 2014 LEGAL STATUS OF WOLF-DOG HYBRIDS vore Guidelines, this is likely to be doubtful. It states that What these entail with regard to wolf-dog hybrids will removal of wolf-dog hybrids ‘will be most effectively also be applicable to many other cases of anthropo- achieved through lethal control, as the chances of selec- genic hybridization, both involving domestic and alien tively live capturing all the specific members of a hybrid species. First, it appears that the scope of the passive pack are minimal’.112 This may be different in the case of protection requirements laid down for wolves in the a lone hybrid, although the consideration that wild-born Bern Convention and Habitats Directive is to be hybrids should not be kept in captivity for animal understood as including wolf-dog hybrids living in the welfare reasons may plead in favour of the lethal option wild. In particular, Bern Convention contracting in either case.113 Condition (ii) is, in any event, unlikely to parties and EU Member States where wolves have affect the removal of hybrids from the wild as such. Appendix II, respectively Annex IV status, must be deemed to be under a legal duty to prohibit the killing Condition (iii), finally, is likewise unlikely to stand in and capturing of such hybrids within their respective the way of derogations to eliminate wolf-dog hybrids. jurisdictions, and to enforce these prohibitions. The After all, the latter’s removal is generally understood to same is true in respect of other strictly protected benefit rather than worsen the conservation status of species. The principal alternative interpretation, the wolf population concerned – which is in most cases whereby said hybrids would be considered as excluded precisely why hybrids are removed. from the scope of these prohibitions, is prone to several problems of both a fundamental and a practi- It is inherent to the system of strict protection under the cal nature, affecting the two legal instruments’ objec- Bern Convention and the Habitats Directive that every tives and effective application. single purported derogation must be put to the test of the above three conditions. The above analysis clearly Second, addressing hybridization through preventive demonstrates, however, that none of these conditions is and mitigation measures – including, in the wolf-dog likely to pose an obstacle to the removal of detected context, measures addressing feral and stray dogs and wolf-dog hybrids from the wild. Selected instances from captive hybrids, and the removal of hybrid animals the domestic sphere appear to confirm this. To follow from the wild – is in conformity with the generic species up on the German and Finnish examples considered protection obligations of States under the Bern Conven- previously, in both countries the removal of hybrid tion and the Habitats Directive, and may indeed be specimens by competent persons under special autho- essential in order to comply with those obligations. rization is standard policy.114 Similar considerations apply in respect of area protec- tion obligations, under the Habitats Directive in par- Incidentally, derogations may also, under the same ticular. These conclusions apply regardless of one’s three conditions, be issued to enable the use of other- position concerning the legal status of hybrids with wise prohibited means for the killing or capturing of regard to passive protection requirements. wolf-dog hybrids. In EU Member States derogations may not be made, however, to allow for the use of Third, assuming the interpretation of hybrids as leghold traps, as the latter is categorically prohibited in covered by the prescribed prohibitions is correct, another EU Regulation, which lacks a derogation where either or both of the strict protection regimes clause.115 of the Bern Convention and Habitats Directive apply, the removal of hybrids from the wild may only take place when the three conditions for derogations from strict protection are fulfilled. This is to be evalu- CONCLUSIONS AND ated on a case-by-case basis. Generally speaking, RECOMMENDATIONS however, such removal appears compatible with all three conditions. The above analysis of the scope and substance of rel- evant legal obligations under the Bern Convention and The central recommendation flowing from this article is the Habitats Directive in respect of the issue of (wolf- for the Standing Committee of the Bern Convention and dog) hybridization renders several main conclusions. the European Commission to follow the example of the CITES COP by adopting express guidance concerning 112 See J. Linnell, V. Salvatori and L. Boitani, n. 12 above, at 77. hybridization, in order to remove ambiguity and 113 Ibid. 114 Staatsministerium für Umwelt und Landwirtschaft der Freistaates promote a uniform application of the respective instru- Sachsen, n. 64 above, at 26; Finnish Ministry of Agriculture and ments. Specifically, it is recommended to clarify the Forestry, n. 96 above, at 54. position of (wolf-dog) hybrids under the Convention 115 Regulation 3254/91 of 4 November 1991 Prohibiting the Use of and the Directive, and of measures to address hybrid- Leghold Traps in the Community and the Introduction into the Com- ization, along the lines of the above analysis. An essen- munity of Pelts and Manufactured Goods of Certain Wild Animal Species Originating in Countries which Catch Them by Means of tial ingredient of such clarification would be the Leghold Traps or Trapping Methods which Do not Meet International adoption of a definition or common understanding of Humane Trapping Standards, [1991] OJ L308/1, Article 2. the term ‘(wolf-dog) hybrid’.
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A further recommendation is for additional research to take place into the domestic practice of the many countries involved, inter alia to gain a better under- standing of the degree to which such practice currently conforms to the interpretations set out in the present analysis.
Arie Trouwborst (LLM, PhD) is associate professor of international and European law at Tilburg Law School in the Netherlands. He has published extensively on (inter)national legal issues related to wildlife conserva- tion and management. He is a member, inter alia,ofthe Large Carnivore Initiative for Europe (LCIE), a Specialist Group of the IUCN Species Survival Commission. Helpful comments by Kees Bastmeijer, Luigi Boitani, Eladio Fernández-Galiano, Jonathan Verschuuren and the anonymous reviewers are gratefully acknowledged. Any errors are, of course, the sole responsibility of the author.
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