This foreword lays the conceptual foundations for the three main articles in the symposium collection, with the aim of fleshing out a new branch of law and legal research: global animal law. The need for scholarly and lawmaking efforts in this field has arisen because animal welfare (a multifaceted concept explained in Section 2 below) has become a global concern (Section 3). Despite emerging global awareness, regulation that improves animal welfare is so far largely missing, especially at the international level (Section 4). Effective regulation to improve animal welfare would need to be global in structure and scope (Section 5). The accompanying field of research is global animal law (Section 6).
‘Liberté, Égalité, Animalité: Human–Animal Comparisons in Law’, by Anne Peters,1 recalls that the socially constructed boundary between animals and humans has been shifting and seems blurry. It highlights the analytical and practical tension present in the acknowledgement of a continuum between humans and animals, and the extant legal gap between the wealth of (international) law serving human needs and rights on the one hand and the glaring international regulatory deficit concerning animal welfare on the other. This legal gap (notably the difference concerning the ascription of ‘rights’) stands in contrast to the historic parallels and intertwinement of the legal discourse on humans and animals. The acknowledgement of these entanglements might be analytically and normatively helpful in employing the potential of law to help in combating and ending violence against animals.
The article by Katie Sykes, ‘Globalization and the Animal Turn: How International Trade Law Contributes to Global Norms of Animal Protection’,2 shows how international trade law is currently making an important and constructive contribution to the formation of global norms relating to animals. This is happening in two ways. Firstly, international trade law allows states to invoke animal protection as a potentially legitimate exception to free trade obligations. Secondly, international trade law enhances international cooperation in the implementation and enforcement of conservation obligations, for example, through the new Trans-Pacific Partnership’s Environment Chapter and through provisions concerning wildlife trafficking and protection of endangered species.
The final article, ‘Towards Universal Principles for Global Animal Advocacy’, by Thomas Kelch,3 points out that, as a result of the globalization of animal uses, animal law must also respond globally. In order to cross cultural boundaries, a common language needs to be fashioned. The article suggests a methodology for generating these universal principles for animal advocacy and legal policy proposals based on Feminist Care Theory, the fundamental notion of which is the concept of caring.
2. ANIMAL WELFARE AS A CONCEPT
As the symposium articles will illustrate, the concepts of animal welfare and animal rights are used in various senses in legal scholarship and in legal practice, and are sometimes placed in contrast to each other. The idea of animal rights in the sense of strong moral and legal entitlements is explored in the first article of this symposium collection.4
Animal welfare first emerged as a scientific concept.5 It relates to the living and dying conditions of animals as they are kept, traded, and killed by humans, based on the assumption that humans are, in principle, morally entitled to do all this with animals. The objective of refining and applying a concept of animal welfare is to mitigate animal suffering while preserving their economic use by humans. Starting in the 1960s, the British Farm Animal Welfare Council developed the ‘five freedoms’ for animals: namely, freedom from hunger and thirst; freedom from discomfort; freedom from injury, pain, and disease; freedom to express normal behaviour; and freedom from fear and distress.6 Today, animal welfare is usually related to three overlapping dimensions: the animal’s basic health and functioning; its affective state; and its natural living. These three dimensions have been addressed both in international standards7 and in domestic animal protection laws.8
In the disciplines of veterinary medicine, which initially shaped the scientific concept of animal welfare (animal behaviour research, stress physiology, nutrition, and genetics), much energy has been devoted to identifying the proper criteria and to operationalize numerical scoring elements to assess and ‘measure’ the welfare of livestock or laboratory animals.9 Recently, the ethical dimension of the concept has come to the foreground. Animal welfare and the accompanying ethics of ‘welfarism’ are today often posited as the counterpart to the idea of animal rights.10 The welfarist ethic has been defined by one of its proponents, political scientist Robert Garner, as the position that animals should not suffer but do not have a right to life.11 Concomitantly, ‘animal welfare does not challenge the property status of animals’.12 Key concepts are therefore not ‘rights’ but ‘the principle of animal welfare and the associated idea of unnecessary suffering’.13 The practical consequence of welfare ethics is that ‘[u]sing animals, per se, therefore, is not the problem. It is what they are used for that is the key’.14
3. ANIMAL WELFARE AS A GLOBAL CONCERN
Animal welfare as a scientific, legal, and ethical concept has developed in response to concerns about the well-being of animals. This concern has spread globally, as will be shown in this section. The reasons for the formation and expression of a worldwide public opinion in favour of improving animal welfare are manifold. In some regions, concern for food safety and consumer health predominate;15 in other regions ethical considerations, or simply compassion, may prevail;16 mostly it seems to be a mixture of motives. Emerging from these social attitudes and concomitant business interests, the idea of avoiding harm or at least cruelty to animals has been endorsed in numerous domestic legal systems, notably in European countries.17
It is an open question whether that idea is already a ‘universal value’ or a truly global social norm.18 Some legal scholars even argue that the wealth of domestic codifications on animal welfare have already given rise to a ‘general principle of law’ in the sense of Article 38 of the Statute of the International Court of Justice (ICJ),19 which would make it a formal source of international law.20 Although this debate is as yet unsettled, the relevance of the topic and the need for regulation has indeed been recognized globally, both by scholars21 and by governments and international organizations. For example, the 180 member states of the World Organisation for Animal Health (OIE) formally recommended that the OIE ‘support the development and implementation of OIE regional animal welfare strategies, and consider the development of a global animal welfare strategy’.22 These recommendations are seen by the United Nations (UN) Food and Agriculture Organization (FAO) as ‘strong evidence of the growing consensus on the importance of animal welfare standards’.23 The Dispute Settlement Body of the World Trade Organization (WTO) has opined that ‘various actions concerning animal welfare at the international as well as national levels suggest … that animal welfare is a globally recognized issue’.24 However, regulation in respect of animal welfare is still largely absent, at both the domestic and international levels. In times of globalization, regulation at the domestic level is insufficient to address animal welfare and, to be effective, needs to be complemented by international rules.
4. THE ABSENCE OF ANIMAL WELFARE IN INTERNATIONAL LAW
At present, although various international law instruments address the protection of endangered species,25 habitat protection,26 and biological diversity,27 very little attention is given to the welfare of animals, let alone animal rights.
Domestic, European and international law comprise three quite different sets of law: one relating to wild animals; another relating to farm animals; and a third relating to animals used in experiments. Legal provisions on animal welfare are dispersed, and are often applicable to members of a particular species only. International wildlife law generally deals with the protection of species (‘good-of-its-kind’) as opposed to the flourishing of individual organisms (‘good-of-its-own’).28 Although animal welfare and animal conservation may stand in conflict at times, both ideas may also be viewed as ‘manifestations of the same overarching principle in different contexts’, as Katie Sykes argues in this symposium collection.29 Still, isolated welfare norms remain incidental in international legal regimes, which have as their primary objective the regulation of the harvesting and trading of animals, conservation, and biodiversity. Examples in Lyster’s Wildlife Law include provisions in the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)30 on the issuing of export permits and the transport of living specimens, which oblige state parties ‘to minimize the risk of injury, damage to health or cruel treatment’,31 and a provision in the 1991 Protocol on Environmental Protection to the Antarctic Treaty, which requires that the taking of animals on the Antarctic landmass be accomplished ‘in the manner that involves the least degree of pain and suffering practicable’.32
In contradistinction to treaty law, most welfare provisions are contained in secondary law emanating from international organizations, bodies, and conferences of the parties. For example, the Standing Committee of the Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention)33 recommends that methods to eradicate an alien species should be ‘as selective, ethical and without cruelty as possible, consistent with the aim of permanently eliminating the invasive species’.34 The International Whaling Commission (IWC) has espoused whale welfare as an issue,35 but this has been contested by some state parties as overstepping the Commission’s mandate. As a result, attempts to define guiding principles of whale welfare are currently stalled.36
The main international standard setter for animal welfare has been the OIE. Since 2005, it has adopted in total eleven sets of welfare standards. Eight of these sets have been collectively incorporated into its Terrestrial Animal Health Code,37 and three further standards into its Aquatic Animal Health Code.38
A key shortcoming of secondary law standards is that typically they are not legally binding,39 but rather constitute guidelines or recommendations addressed to the organization’s member states. The OIE’s standards on live animal transport are exemplary of this weakness in that, as David Favre observes, they ‘include no numbers, no prohibitions, no required inspections, and no limitations on operations. Rather, the standards read like a checklist of issues that should be considered if you are going to engage in live animal transport. While this list is useful for policy makers, it is not an actual standard that limits or prohibits practices that are harmful to animal welfare’.40
European countries especially – both at the national level and through the European Union (EU) and the Council of Europe (CoE) – have enacted legal norms governing the treatment of animals (keeping of farming animals;41 transport;42 slaughter;43 pets44), mainly since the 1980s. Moreover, the European Court of Human Rights is developing case law on the interface between human rights and animal law,45 although this body of law is only regional in scope.
Clearly, the piecemeal offering of international and regional law does not form a coherent and ‘thick’ body of law. The provisions are fragmented, often qualified, often inconsistent, unenforceable, and moreover unknown to most lawyers, law enforcers and legal scholars alike. The sparse works of legal scholarship in this field confirm this diagnosis. Caley Otter and her co-authors’ ‘examination of the most prominent international animal regulatory instruments reveals that a transnational animal protection regime does not exist at present’.46 Steven White deplores the ‘lack of a coherent legal regime’, and ‘that there is currently a gap in the international legal protection of animal welfare’.47 Michael Bowman and his co-authors find ‘that the welfare of individual animals (whether wild or domesticated) is emerging as a significant and pervasive concern of the international community, albeit one which has not yet attracted the level of attention or consistency of response’,48 and continue to observe that ‘the problem has thus far been addressed in an ad hoc and piecemeal fashion, predominantly at the regional level and without the benefit of clear theoretical foundations’.49 The symposium articles also display a scattered and patchy picture of legal norms relating to animal welfare.
5. THE GLOBAL NATURE OF THE PROBLEM REQUIRES GLOBAL REGULATION
Various sectors of societies worldwide, including the business and trade sectors, have taken cognizance of animal welfare as an issue which requires regulation. Legal and political science scholarship also recognizes the current legal gap and the need to close it.50
The point is now that any practical or academic treatment of the issue can no longer sensibly remain confined to the sphere of the nation state – to national law, national politics, and national economics. The imperative of global (as opposed to purely national) regulation stems from a number of ideational and material factors which are not dependent on the existence of a postulated but contested global principle that animals should be treated decently. The reason is rather that virtually all aspects of (commodified) human−animal interactions (ranging from food production and distribution, working animals, animal use in research, to breeding and keeping of pets) possess a transboundary dimension. Therefore the welfare of animals, which is inevitably affected by these interactions, is a global issue per se calling for a global response.51 The globalization of the issue of animal welfare arises from six, partly overlapping, grounds.
Firstly, increasing attention to welfare aspects by consumers in their purchasing decisions on products involving or using animals has an impact on both the relevant industries and governments.52 Consumers in industrialized countries increasingly expect lawmakers (for varying reasons, including anthropocentric motives such as human health and fitness53) to take animal welfare seriously.
The resulting political pressure affects not only the regulation of domestic production but also that of the importation of foreign animal products. A current example is the EU’s seal products regime which the EU promotes largely by highlighting the ‘expressions of serious concerns by members of the public and governments sensitive to animal welfare considerations’.54
Concomitantly, businesses that seek to export their animal products to states in which consumers are more attentive to animal welfare need to pay more attention to the issue if they wish to retain their market share. This also holds true for the regulators in the countries of export if they wish to support their trading industries. In this context, a recent FAO report notes:
Animal welfare is not a new subject for regulation in most developed countries, owing to a sophisticated consumer base and greater exposure to animal welfare issues. Growing international trade is generating more interest in animal welfare elsewhere in the world, in particular in countries seeking to increase trade with Europe.55
A follow-up question is how much can be left to so-called indirect regulation through the invisible hand of the market, and where ‘command-and-control’ regulation is needed. As a matter of principle, the meeting of offer and demand on a market can bring about appropriate product and production standards only when consumers are comprehensively informed before making their purchasing choices. This is typically not the case in the animal-related industry. On the contrary, as Thomas Kelch points out, the animal-use industry consciously and massively seeks to foster human ignorance about the treatment and characteristics of animals.56 This means that the first stage of regulation should aim for transparency, consumer information, certification, and labelling.
Secondly, and closely related, global regulation is necessary to prevent evasion of the law. The animal-processing industry (for food and pharmaceuticals) is a global industry and thrives on global trade. Even if one country attempts to improve welfare standards – for example, for the caging of livestock, for slaughter, or for animal experimentation – it cannot do so unilaterally if it wants to remain effective because the affected industrial sectors can escape stricter regulation by relocating.57 Such relocation, or ‘leakage’, to cheap and low-standard countries then renders high national animal-protection standards meaningless. A concrete example of such evasion is the transfer of the slaughter of horses from the United States (US) to Mexico, where welfare standards are much lower. After closure of the last horse slaughter facilities in the US in 2007, exportation of horses for slaughter to Canada and Mexico has increased dramatically (by 660% to Mexico), with unintended negative effects on the horses’ welfare, notably during transportation.58 Another pertinent field is biomedical research. In 2010, an international group of researchers, research funding institutions, and representatives of pharmaceutical and biomedical industries adopted the Basel Declaration,59 with the (implicit) objective of persuading regulators and the public to renounce overly strict regulation of biomedical research involving animals. The accompanying statements underscored the importance of preserving Switzerland as a site for biomedical research, which might be jeopardized if research regulation became too strict. The organizers, at least implicitly, raised the danger of outsourcing the industry, which in turn would lead to significant losses of tax income for Switzerland. If regulators bow to such pressures, and when individual countries try to keep or regain economically significant industrial sectors by supplying an attractively permissive legal environment, there is a danger of a downward spiral of standards, a race to the bottom, to the detriment of animal welfare.60
Thirdly, nation states with high protection standards which are conscious of the global competition among states over mobile industries face various policy options.61 The obvious response might be to lower national standards (resulting in the race to the bottom referred to above), but an alternative path is to campaign for uniform international standards in order to prevent other states from exploiting their lower standards as an (unfair) competitive advantage. Uniform international standards can level the playing field for businesses in high-standard states by subjecting all businesses to one and the same (high) standard.62 This mechanism needs to be explored with regard to animal welfare standards. The EU, which has relatively more stringent animal welfare standards than most of its global trading partners, has proposed that the WTO should directly address such standards.63 The EU’s motivation is to prevent ‘its animal welfare standards [from being] undermined and … it could suffer negative trade effects, since agricultural products produced to meet high EU animal welfare standards would run the risk of being edged out of the market by cheaper imports produced under lower standards’.64 However, the proposal to adopt a WTO-wide animal welfare standard thus far has not found favour with WTO members.
Fourthly, animal welfare is embedded in a complex set of issues, most of which are of a global nature. The industrialization of meat, dairy, and fur production has massive environmental, climatic, social, and ethical consequences on a global scale. What is at issue are sustainability, the extinction of species, poverty, and malnutrition – all of which are global problems. This embeddedness itself is an additional reason why animal welfare can only be tackled globally.
A fifth – and pragmatic – reason is that international animal welfare standards would provide a benchmark for local, national, and international legislation. At present, animal welfare and rights activists face the daunting and repetitive task of battling for new laws in multiple, isolated national jurisdictions. An international benchmark would allow them to devote their scarce resources on implementation of that acknowledged standard.65
The sixth consideration is that with regard to existing international regimes, notably trade agreements, new international rules on animal welfare could serve as an interpretative guideline. The relevant provision of the Vienna Convention on the Law of Treaties (VCLT)66 requires that ‘there shall be taken into account … any relevant rules of international law applicable in the relations between the parties’ (Article 31(3)(c)).67 Only international, rather than domestic, rules could perform this important function as a catalyst for a more animal-friendly reading of existing international trade agreements.
It follows from these six considerations that legal rules for improving animal welfare can be effective only if they are enacted globally: on both the domestic and the international levels, and in the form of state or interstate regulation and non-state standards. The ‘global’ quality of such regulation will be explained in the final section of this foreword.
6. THE SCOPE AND TASKS OF GLOBAL ANIMAL LAW
Generally speaking, global law refers to a regulatory mix combining a host of different types of norm. Besides the various ‘levels’ of national, international, and regional or sub-state law, the regulatory network consists of norms made by states and by private actors, thus including standards emerging from industry, often in collaboration with governmental agencies. Finally, it includes both hard and soft law, ranging from codes and international conventions to declarations sponsored by non-governmental organizations (NGOs), which often act transnationally.
An alternative label would be ‘transnational law’ in the sense developed in the inaugural editorial of this journal.68 In fact, what Heyvaert and Etty describe as transnational environmental law is exactly the above-mentioned mixture of law as ‘the product of a rich combination of local, regional and transboundary communications and pressures’, of ‘engagement with multilevel governance’, including ‘private action in the public interest’, and ‘cross-regime’ processes.69
It is commonplace that normative orders relating to various issues can be described as ‘global’ or ‘transnational’ in that sense. We are speaking of a ‘global administrative law’, and of a ‘transnational environmental law’. The label ‘global’/‘transnational’ and the conceptualization therein allow us to grasp the characteristics of these branches of the law better, and thus to adequately analyze, criticize, and develop the law.
These considerations are also relevant for animal law. Animal law can best be applied and analyzed when legal practitioners and scholars are mindful, simultaneously, of the various ‘levels’ of the law and the various types of norm.
Although the corpus of domestic, international, and local law; of state-made and privately generated norms; of hard and soft law relating to the treatment and welfare of animals is thin, it has reached a critical mass which justifies representing it as a cross-cutting matter or even as a legal field of its own, under the overarching heading of global animal law.
What should and could a scholarly discipline of global animal law deliver? It could erect a conceptual basis and contribute to the practical development of the field by furnishing appropriate legal arguments and concepts. Further research could stimulate law reform by identifying legal gaps. To that end, the dispersed international (universal and regional, notably European) norms (hard and soft) on animal welfare must first be identified, mapped, and analyzed. Secondly, international and European litigation (such as before the Court of Justice of the EU (CJEU), the European Court of Human Rights (ECtHR), the ICJ, and the WTO Dispute Settlement Body) and legal reform projects in the entire field call for comment and critique.
Finally, this research would examine the practical necessity, the moral justification, and the political prospects and strategies for consolidating and strengthening the corpus of international animal welfare norms specifically. The research programme would thus be descriptive-analytical-conceptual, and have an impetus of legal policy. The articles making up this symposium collection seek to contribute to the new discipline of global animal law, applying different methods and zooming in on specific sub-questions.
Besides the articles in this symposium collection, recent scholarship in international law and international relations has discovered the issue of animal welfare, with significant implications for legal policy.70 Proposals have surfaced to intensify and redirect standard setting by the OIE, which boasts of having identified animal welfare as a priority in the OIE Strategic Plan 2001–05. In fact, the OIE seeks to ‘take the lead internationally on animal welfare and, as the international reference organization for animal health, to elaborate recommendations and guidelines covering animal welfare practices, reaffirming that animal health is a key component of animal welfare’.71 However, it is doubtful whether the OIE is well suited to develop a detailed and coherent animal welfare and protection regime.72 The reason is that this organization’s mandate is the prevention of the transboundary transmission of animal diseases through the exportation of livestock, with the ultimate aim of protecting human health.73 To this end, the OIE has traditionally entertained close relationships with the animal trade and livestock industries.74 Animal protection or welfare is not its core objective, but only a ‘side show’ by which it seeks to respond to new consumer expectations.
Another effort, pursued by a coalition of numerous NGOs, is the campaign for the adoption of a Universal Declaration on Animal Welfare (UDAW) under the auspices of the UN, possibly under its Economic and Social Council (ECOSOC).75 The UDAW campaign seeks to attract support by states and by individual petitions. The format of a UN declaration would follow the model of the Universal Declaration on Human Rights of 1948, which is not a binding treaty but formally is simply a resolution of the UN General Assembly.76
A different scholarly proposal is to promote the adoption of a new binding umbrella treaty on animal welfare, supplemented by specific protocols (on, for example, companion animals and on the care of exhibited wildlife),77 which is a regulatory technique typically used in international environmental law. Overall, recent practical and scholarly developments might ‘offer some hope for the rationalization and consolidation of the at present rather desultory and disjointed state of welfare provision’78 in international law.
Research into global animal law must include a comparative perspective and not be limited to international law stricto sensu, because the relevant body of hard international law is very fragmented and thin. The research thus involves both ‘horizontal’ comparisons (among different national legal regimes) and ‘vertical’ legal comparisons (among national, European, and international legal regimes).
Any legal research relating to animals needs to take into account and must be linked to international economic law, international environmental law, international human rights law, and the law of development. The identification of the cross-cutting theme of ‘animal welfare’ in these different sub-areas of law would allow for a better analysis of that theme. Tagging the theme as ‘global animal law’, moreover, could function as a brace which counters the fragmentation of international law in these areas.
The legal protection of animals, their status, and their potential rights ultimately depend on human attitudes towards animals, and these are influenced by habits, religion, the wealth of a society, its state of industrialization, and other cultural factors. Research into global animal law must therefore be particularly sensitive to problems of Eurocentrism, of legal imperialism, and of a North–South divide. It should not naively export European values but should seek an overlapping consensus. This consensus could be strengthened and further developed with arguments which can be transmitted transnationally, and which have the potential to become universal. For example, Thomas Kelch argues in this symposium collection that Feminist Care Theory could constitute an appropriate foundation for creating universal moral principles relating to animals.79 At this point, scholarship needs to trust in the transformative power of public discourses, and also feed them.
These discourses should be informed by findings of natural science on the sentience of animals. For this reason, research into global animal law generally needs to be interdisciplinary to the extent that it must draw on insights of philosophy (ethics), biology (zoology), anthropology (human−animal studies), history, cultural studies, economics, as well as other disciplines.
In conclusion, animal welfare is an issue which awaits global (transnational) regulation, notably because it is impossible to unilaterally implement high domestic animal welfare standards in the face of the threat by relevant industries of relocating to production sites with lower animal welfare standards. This constellation calls for global animal law as a branch of international law and as a scholarly discipline.
However, it is possible to push beyond pragmatic and conventional research boundaries, and consider the global improvement of animal welfare as a matter of global justice.80 The ideas developed for human rights and global justice also ‘provide strong support for the claim that the interests of nonhuman animals should be respected and protected internationally’.81 The core idea of global justice (as applied to humans) is that the place of birth or the nationality of a person is morally irrelevant to what a human being is owed for reasons of fundamental justice. Therefore, the protection of basic interests should not be dependent on different national legislative enactments but must be guaranteed globally in a uniform way. Oscar Horta applies this reasoning to animals:
After all, basic justice is owed to all those who possess the morally relevant features – and hence to both Swedes and Somalis. But if this is the case for humans, then it must apply to nonhuman animals too. … [I]f nonhuman animals possess the morally relevant features – that is, sentience – then being born in Sweden or in Somalia should be equally irrelevant for the award of basic rights to them. Why? Because this fact has nothing to do with what the theories of wellbeing claim is valuable for us, which is what can constitute the basis for the attribution of rights.82
Such reasoning requires us to take the leap from animal welfare to animal rights. The legal conceptualization of rights for animals is much more demanding and faces doctrinal, political, and moral objections.83 Still, it is likely that this question, as others in the new field of research into global animal law, will become ever more pressing. After all, global animal law is a manifestation and a driver of the broader ongoing ‘animal turn’84 in the social sciences and humanities.85