The Trend Towards Animal Rights in Domestic Laws

Since 1948, the rise and entrenchment of human rights in state constitutions and in the international system has not been paralleled by widespread and firm recognition of animal rights. Rather, in a growing number of states around the world, animals have been protected by objective standards rather than through rights.Footnote ³

Only very recently, a few domestic jurisdictions have begun to acknowledge animal rights. Courts in Argentina and Colombia have granted habeas corpus to apesFootnote ⁴ and a bear.Footnote ⁵ The Indian Supreme Court recognized fundamental animal rights under the Indian constitution.Footnote ⁶ In U.S. district courts, judges have considered but not endorsed animal rights. Rather, they have denied habeas corpus to chimpanzees and the standing of a macaque in a copyright suit.Footnote ⁷

The novel judicial acceptance of animal rights in a few states is good for animals themselves, because rights confer on them stronger and more sustainable legal protections than the safeguards offered by “objective” laws.Footnote ⁸ The benefits of granting (or acknowledging) legal rights to an actor are procedural, legal, social, and symbolic. Rights facilitate standing in court and trigger an obligation to justify their curtailment. The open textuality of rights facilitates the gradual increase of protection, and allows decision-makers to adapt the law to reflect evolving moral attitudes. Not all of these blessings of rights are equally relevant for animals. The main asset for animals is that rights confer a legal position that is elevated above the ordinary balancing of conflicting goods. When animals only benefit from protective rules, their welfare is but one interest among others. Balancing the interests of animals against those of humans typically ends up prioritizing the latter, even when the human rights are trivial ones. Arguably, this type of balancing is structurally biased against animals. In contrast, animal rights would allow a fair balancing in which the proper value of fundamental animal interests (such as the interest in life) could be integrated.

While animals do not need free speech, freedom of religion, or equal access to public office, sentient animals would benefit from acknowledgment of a right to life, a right to be free from torture, and physical liberty. In addition, the right to legal personality—the “right to have rights”—would be the explicit or implied precondition for all other rights. Animal rights would not categorically rule out animals being slaughtered for food, kept as pets, or used in scientific experiments but they would place a higher burden on the justification of such uses. Animal rights would thus preclude the current routine sacrifice of fundamental animal interests in favor of trivial human interests.

The Need for International Animal Rights

Purely domestic rights for animals would not be enough. The principled arguments that have led to the codification of human rights in international agreements are relevant for potential animal rights as well. First, from the perspective of fairness and justice, such rights (once accepted as a matter of principle) belong to animals independent of their place of birth and abode, and they are therefore universal. Second, international rights would serve as a benchmark for domestic law. International instruments would potentially allow for some monitoring or at least facilitate the formulation of criticism against domestic practices that do not satisfy the international standard. Third, while the main mechanism for enforcing rights in domestic law is a court process where standing for animals creates additional problems, international rights are often monitored in nonadversarial reporting procedures in which the rights-holders do not act as parties. The factual difference between human victims and animal victims that cannot speak for themselves does not bear on these proceedings.

Fourth, nation-state-based rights would not suffice because the problem is a global one. Industrialized meat, dairy, and pet production is now spreading to countries of the Global South and to developing countries in which the demand and purchase power for animal products is steeply rising. Those industries have become globalized through transnational supply chains. The manufacturing and trade conditions are leading to a dramatic increase of “normal” violence against animals in sheer numbers (confinement, mutilation, killing). The transnational dimension of these more or less violent activities has intensified, because animals and the equipment to confine, mutilate, and kill them form part of global production chains.

Against this background, the endorsement of animal rights only on the national level in some states would probably lead to the outsourcing of the relevant industries. This risk is already present when one state has higher protective standards than others, and it could be exacerbated when one but not all states embrace a rights-based approach to animal protection. In order to prevent a competitive disadvantage to industries subject to higher domestic standards, and to forestall a race to the bottom, states must seek harmonized universal standards and a level playing field. Such harmonization is also desirable to accommodate consumers’ concerns about the importation of animal products from low-standard countries, and would obviate import prohibitions based on such public morality concerns.Footnote ⁹ For all these reasons, an intergovernmental universal declaration on animal rights is warranted.

International Animal Personhood

In law, personhood is a precondition for holding rights. Personhood is best understood as a cluster concept that does not depend on a set of definite properties but has blurry boundaries. The legal ascription of personhood is internal to a given legal order. This means that an actor or an entity can be a person for some purposes (or in some subfields of the law) and a nonperson for others.

Importantly, international law has dynamically recognized the personhood of a host of actors, and international law is particularly open to the personhood of nonhumans—with states being the main persons in this legal order. Humans were in the late nineteenth and early twentieth centuries explicitly and adamantly qualified as “objects” of international law.Footnote ¹⁰ Accordingly, early international treaties to suppress the trade in women and girls (often referred to as the “white slave trade”) were intended to preserve morality; rights of women and children were unknown.Footnote ¹¹ With regard to animals, that line of reasoning persists. Until the beginning of the twentieth century, all normative restrictions on animal abuse served to protect public morality, “decency,” or “chastity.” Animal cruelty was a “public misdemeanor” and was prohibited only if it took place in public.

The parallels between the past status of humans in international law and the present status of animals is striking, as a textbook recognizes:

In international regulation against human trafficking, the purely other-regarding “public morals”-rationale has been overcome, and modern domestic animal laws protect animals for their own sake, as sentient beings, mostly without granting them rights. Only for humans has an actual rights revolution taken place in national and international law.

Against the background that corporations can be persons for purposes of domestic commercial law, and that the legal status of humans has changed from objects to subjects of international law, there is no intrinsic conceptual barrier to assigning international legal personality to animals—basically because personhood is a purely technical juridical device, a legal fiction. But in social and cultural terms, this will be a difficult goal to achieve.

Animal Rights and Human Rights: Universality

Skepticism about international animal rights is tempered by recalling that fundamental objections against the internationalization of rights have likewise bedevilled the international human rights regime. It has been said that the animal rights movement is “yet another crusade by the West against the practices of the rest of the world,”Footnote ¹³ and that the propagators of such crusades claim universal validity in order to impose their own, local preferences on other cultures, so as to consolidate cultural and political dominance over the non-Western world, especially the Global South. This charge is not trivial. There is a real risk that the protection of animals targets minority practices (such as Muslim ritual slaughter or indigenous seal and whale hunting), although these practices are in numerical terms insignificant in comparison to the majority's “normal” massive use and killing of animals. This targeting manifests and fuels majority prejudices against the singled out groups, and can pave the way for intervention and domination. In fact, “dominant groups have long justified their exercise of power over minorities or indigenous peoples by appealing to the ‘backward’ or ‘barbaric’ way they treat … animals.”Footnote ¹⁴

However, references to cultural traditions suffer from three flaws. First, historical experience shows their frequently pretextual character. Typically, ruling elites abusively invoke “culture” to secure illegitimate privileges. Second, we should not exaggerate cultural difference. The massive use of animals for human needs and the paucity of reflection on and justification of these practices in ethical terms is a shared feature of all cultures. Third, cultures do not unfold inevitably, as if according to a genetically defined pattern. Eating shark soup made from fins cut off live sharks, fox hunting with hounds, staging bullfights, and stuffing geese for foie gras may be traditions just like relegating women to the house and prohibiting them from exercising certain professions or driving a car. But simply because these are traditions they are not immutable and are not worth protecting as such. Instead, morals, traditions, and legal provisions (in short, culture) are made, practiced, and applied by human beings capable of learning, and can change.