If there is such a thing as a human right to hunt, contemporary hunter-gatherers must surely possess it. Although many hunter-gatherers now also cultivate crops or keep livestock, hunting remains a vital means of subsistence and is central to their identity. It is not they who have driven so many species to extinction; it is not they who pose a serious threat to wildlife numbers, but commercial poachers and the money-seekers behind them.

So why should hunter-gatherers – the bushmen of the Central Kalahari, for example, or the Hadza of northern Tanzania – now require the permission of the rest of us to do what they have probably done for millennia?

Global leaders must acknowledge that land and forests owned and managed by local communities are more likely to prevent deforestation and deliver greater carbon storage

The answer, it turns out, is that we own the wildlife that they want to hunt. With a single stroke of the legislative pen, almost all countries with a significant wildlife population have vested title to all wild animals in the nation state. One curious result is that an antelope or wildebeest changes owners every time it crosses an international boundary; but the rule also means that the state on either side of the boundary is able to regulate who can hunt what, and where and when they can do it. Hunter-gatherers may know little or nothing about these arrangements until they are arrested for an offence under the local wildlife law.

Given that for most of our time on earth, humans have hunted and gathered to survive, it is curious that those of us who have changed our ways are so intolerant of those who have not. 

One reason is undoubtedly to do with the conservation lobby, which is largely responsible for the swath of game parks and reserves where hunting of any sort can attract a long prison sentence. In Africa especially, conservationists have pursued a vision of wilderness free of human contact, which never existed until they thought it up. To them, it has not mattered that tribal peoples were evicted from their homes to make way for protected areas. In south-east Cameroon, for instance, thousands of Baka “pygmies” are now consigned to the perimeter of the national parks which were once their homes. Those caught in their old hunting grounds risk a serious beating at the hands of park eco-guards.

An antelope or wildebeest changes owners every time it crosses an international boundary

Many conservationists now acknowledge that mistakes have been made, but in their “war” against the illegal wildlife trade have rarely troubled to distinguish subsistence hunters from commercial poachers.

Some fear that subsistence hunters, although they hunt only “for the pot”, pose an unacceptable risk to wildlife numbers even outside the parks. There is little scientific evidence of this, and the limited data available suggests that natural growth rates usually exceed the take off.

Perhaps the most crucial factor, however, might be the common misconception that hunter-gatherers are somehow “backward” and that for their own good they need to become like the rest of us.

The formal recognition of a right to hunt, it has been argued by the Botswana government among others, would only delay their transition to the “normality” of a more settled existence: a transition, as it happens, which will also make them easier to control and, eventually, to tax.

These views are deeply embedded in the law of property. In Ethiopia, Kenya and many other parts of Africa, the law tends to recognise property rights based on the use or occupation of land only if this is continuous and exclusive. If it is neither, it will generally not matter that the community has made the same use of the same tracts of land for generations.

For the many hunter-gatherers who either share space with other groups or rely on resources scattered over a wide area – and who are therefore still highly mobile even if they also have permanent settlements – this approach is liable to undermine any legal claim to land rights.

There have been occasional victories. I represented the Kalahari bushmen in a 2006 case in the Botswana high court in which the court overturned a hunting ban in the Central Kalahari Game Reserve, because it violated not only local wildlife legislation but the bushmen’s right to life under the Botswana constitution. In another case, Kenya’s land and environment court recently ruled that members of the Ogiek community have been “unfairly prevented from living in accordance with their culture as farmers, hunters and gatherers in the forests”, and that this amounted to discriminatory treatment in breach of the constitution of Kenya.

Across the world, governments are protecting habitats. But indigenous peoples are being evicted. But the reversals have far outweighed the successes. Since all customary land rights were extinguished by law almost 25 years ago, the Hadza of northern Tanzania commit an offenceevery time they hunt. The Baka of south-east Cameroon are in much the same position.

The Kalahari bushmen may have won their court case but are still refused licences to hunt – and if they hunt anyway, are liable to be fired at from helicopters. Botswana is only one of several countries to have adopted a shoot-to-kill policy, which apparently attaches greater importance towildlife than to human life. Almost everywhere, the odds are still stacked hugely against contemporary hunter-gatherers. National laws have yet to accept that not everyone wants to be a farmer or to live in a big city, and that the sedentarisation of hunter-gatherers can cause many more problems than it solves.

International law is less constrained by the straightjacket of property rights, and has proved more supportive of subsistence hunting rights. For example, article 14 of the ILO Indigenous and Tribal Peoples Conventionhas explicitly recognised the need “to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities” which must include hunting. Article 26 of the UN Declaration on the Rights of Indigenous Peoples talks of “their right to the resources which they have traditionally used” – resources which, once again, must include animals hunted for subsistence.

Indeed, there are some developments but regional and international bodies are notoriously slow to process claims and are often unable to enforce their decisions once they are made. Those who support the rights of hunter-gatherers need to explore other avenues.

A first port of call might be the international conservation NGOs, which have played such crucial a role in the creation of national parks in developing countries.

Gordon Bennett is a human rights lawyer and works closely with Survival International