9.1 Introduction
Decisions by international organizations (IOs), in all their legal and political dimensions, typically neglect the interests of non-human animals (in the following: animals). The animals moreover do not have a say in the political processes that lead to such decisions.Footnote 1 The chapter investigates whether and how animal interests can and should be brought to bear in the processes of decision-making, using the World Organisation for Animal Health (WOAH) as an example. I articulate this claim with the soft phrase ‘bringing to bear’ and ‘consideration’, and not in terms of ‘representation’, in order not to pre-empt the question whether non-democratic, symbolic, and paternalistic forms of speaking or standing ‘for’ should be properly qualified as representation.
The chapter first shows the need for a better consideration of animal interests in decision-making by IOs (Section 9.2), and contrasts this normative quest to the deficient reality of the neglect of animal interests in political processes (Section 9.3). It uses the WOAH as an illustration (Section 9.4). It then works through cognate concepts that have structured the debates so far, ranging from animal citizenship over animal representation to animal consideration and animal deliberation (Section 9.5). After this groundwork, the chapter briefly canvasses some proposals for animal ‘representation’ in democratic political processes, drawing on proposals for the representation of other absent actors such as ‘extraterritorial’ humans, future generations of humans, and nature (Section 9.6). With due modifications, some schemes could be applied to the work of IOs (Section 9.7).
9.2 The Need for Considering Animal Interests in the Decision-Making by International Organizations
The disregard of animals’ interests in decision-making of IOs poses a problem of what has been called ‘interspecies justice’Footnote 2 because animal interests and maybe even animal rights are at stake (Section 9.2.1) and because the political action concerning animals’ lives and death is shaped by actors beyond the Nation-State (Section 9.2.2).
9.2.1 Animal Interests or Rights
The interspecies injusticeFootnote 3 exists independently of the answer to the controversial question whether animals (or some animals such as sentient animals) have fundamental moral and/or legal rights (such as the right to life). I posit that animals have interests (stakes in something that concerns them). In many respects, their (presumable or discernible) interests significantly diverge and conflict with the typical human interests, also in areas that are regulated by the WOAH. For example, the WOAH has adopted standards on slaughter. The mitigation of suffering on their way to death is in the interest of the animals, but in the end, the animals certainly are even more interested in not being killed at all.
On the premise that sentient animals possess a set of fundamental rights, it can be argued that the proper protection of those rights requires political power and order. The political order best able to protect those rights is a democratic political order.Footnote 4 It follows that animals need to become part of (or must be better considered in) this democratic order.
Alternatively, on the contrary premise that non-human animals do not possess fundamental rights, the political process also needs to be changed. The reasoning along this line is that in liberal democracies, the legal sphere (the protection of fundamental rights) or the political sphere (democratic lawmaking procedures) are seen as complementary and even as communicating vessels. Mechanisms and safeguards in one sphere might (to some limited extent) compensate for the lack of mechanisms and safeguards in the other sphere. On this premise, it can be argued that as long as animals lack fundamental rights, their interests must all the more be brought to bear in political (democratic) processes.
9.2.2 Relevant Decision-Making Beyond the Nation-State
In a world of global capitalism and with global governance, animal interests are affected by (and subjected to) decision- and rule-making across State boundaries. Much of the human behaviour harming animals occurs in the context of global supply chains, and has manifold extraterritorial or global implications. This ranges from animal live transports to the global trade of animal derivatives, the transboundary transmission of zoonotic diseases (such as Covid-19), to deforestation, erosion, water scarcity, and global warming (caused inter alia by methane from cattle waste) as a result of animal overuse and abuse by humans.Footnote 5
These global problems are being addressed by States, and by international, transnational, and hybrid actors. For illustration, this chapter describes in some detail one IO, the WOAH. Other IOs also make decisions that are often especially relevant for the well-being and flourishing of animals, for example, the World Trade Organization (WTO) and the Food and Agriculture Organization (FAO). Relatedly, activities by other bodies and programmes run by IOs, such as the International Conference on Population and Development (ICPD) and the Programme of Action and the Environmental Programme of the United Nations (UNEP), matter. The line between decision-making ‘of’ an organization and decision-making by States under its auspices may be blurry. For example, heads of States and governments have, under the aegis of the United Nations (UN), adopted the Sustainable Development Goals (SDGs) in 2015 which are highly relevant for animals. Also, in non-incorporated treaty regimes, conferences of the parties (COPs), such as committees under the Convention on International Trade in Endangered Species (CITES) or the International Whaling Commission (IWC) under the International Convention on the Regulation of Whaling (ICRW), take decisions without much consideration for animals’ interests. Finally, transnational civil society organizations (such as People for the Ethical Treatment of Animals (PETA)) and hybrid actors (such as the International Conservation Union (ICU)) specifically deal with animals. Given the relevance of the said actors’ activity for animal interests, these interests need to be brought to bear not only in national but also in international decision-making. In the end, political (democratic) processes need to be redesigned for a dual extension: beyond State boundaries and beyond species boundaries. This has been called ‘a sentientist cosmopolitan democracy’ by Alasdair Cochrane.Footnote 6
9.3 Nascent Practices of Animal Consideration in Political Decision-Making
The preceding section has argued that animal interests should be brought to bear more in human political decision-making including in IOs. Practices of animal consideration are currently only rudimentary. This section will give some examples, on the domestic plane (Section 9.3.1) and on the international level (Section 9.3.2).
9.3.1 Animal Consideration in National (Democratic) Lawmaking
In some democratic States, political parties that stand for animals have been created, but their candidates have been gaining only exceedingly small numbers of votes.Footnote 7 In addition, several jurisdictions (national and local) have established ombudspersons, committees, commissioners, or advocates for animals. One example is the German Tierschutzbeauftragte (animal commissioner). The office was created in 2023. The first office holder espouses a broad and loose conception of representation, claiming ‘to give animals a voice on the federal level and, for example, represent them in the legislative process’.Footnote 8 Typically, these institutions and offices do not possess lawmaking powers but are tasked to observe, make recommendations, or develop strategies. They are (despite the language used) not democratic representatives. If they are sufficiently independent from the executive and legislative branches, their work may help to mitigate the systematic neglect of the animal interests in national (or subnational) political processes.
9.3.2 Animal Consideration in International Forums
In transnational and international political forums, including in formal IOs, various players have articulated representative claims in favour of animals. Several big transnational civil society organizations (CSOs) defend various aspects of animal-related causes on a global plane, ranging from animal species protection (such as the World Wildlife Fund (WWF)) to the welfare of agricultural animals (such as Compassion in World Farming).Footnote 9 These CSOs seek to bring animal interests to bear both in the domestic political processes of States and in IOs. Their voice and participation in decision-making processes can make a democratic contribution, but they are not democratic ‘representatives’ of animals.Footnote 10
The European Union (EU) is a special IO, inter alia because its lawmaking process has (weak) democratic characteristics. In the EU Parliament, delegates of animalist political parties won three seats (out of 705) in the 2019 elections to the EU Parliament.Footnote 11 Moreover, several EU citizens’ initiatives (ECIs) have been successfully launched under Article 11(4) TFEUFootnote 12 with regard to animal welfare, and have triggered political responses by the EU Commission. Recent examples are the ECI ‘End the Cage Age’Footnote 13 and ‘Save Cruelty-free Cosmetics – Commit to a Europe without Animal Testing’.Footnote 14 Such initiatives are one building block of what the EU calls democratic participation (Article 10(3) TFEU), and they do feed animal interests into EU decision-making. However, the citizens launching an initiative do not ‘represent’ animals, and unfortunately the legal effects of an ECI are very feeble by design because initiators cannot propose a concrete bill.
To conclude, the current practices of bringing animal interests to bear in political processes on the national and international level are very weak. They need to be stepped up for the reason given in Section 9.2.
9.4 The WOAH
This section singles out one particularly relevant organization, the WOAH. It describes the WOAH decision-making, especially standard-setting processes, to illustrate how animal interests are neglected here.
9.4.1 Institutional Framework
The WOAH has its main seat in Paris and a dozen regional representations in the entire world. It was founded as the Office International des Epizooties (OIE) in 1924, in response to a Rinderpest occurrence, by twenty-eight States. It now counts 183 Member States and is thus an almost universal intergovernmental organization.Footnote 15 Its English name was introduced in 2003, and its English acronym WOAH in 2023.
The legal bases of the organization are the International Agreement for the Creation at Paris of an International Office for Dealing with Contagious Diseases of Animals with annexed Organic Statutes forming an ‘integral part’ of the agreement.Footnote 16 Further key legal texts are the Organic Rules,Footnote 17 the General Rules,Footnote 18 and several headquarters agreements.
The WOAH’s narrow original objectives are defined in Article 4 of the Organic Statutes.Footnote 19 On its current website, the WOAH formulates its ‘vision’ as follows: ‘Provide leadership in global animal health governance. Improve animal health care and welfare worldwide and support global goals.’ The guiding principles of the WOAH’s animal health (and welfare) governance are, according to the former General Director, ‘excellence [i.e. scientific expertise], transparency and solidarity’.Footnote 20 The website describes the organization’s mission as: ‘Promoting coordination of animal health and welfare; fostering transparency in the animal disease situation worldwide; support Veterinary Services to strengthen the governance of animal health systems.’ In order to fulfil its mission, two main activities of the WOAH are (1) the production, collection and dissemination of information on the global animal disease situation; and (2) standard-setting on animal health (and welfare).
The WOAH’s main organs are listed in Article 3 of the Organic Rules.Footnote 21 For the purposes of ‘representation’, I shall mainly look at the plenary body, the World Assembly of Delegates (Assembly).Footnote 22 Similarly as in other IOs, this Assembly is neither democratically elected by (nor directly accountable to) any global citizenship, nor does it have the power to make binding laws. The Assembly meets at least once a year for the General Session in May in Paris.Footnote 23
The WOAH’s mandate, structure, working methods, and activities have evolved significantly during its near one hundred years’ existence. Its bodies have been re-organized and its mandate has been extended. This practice of high dynamism should make further reforms that would strengthen the consideration of animal interests easier than in other organizations that have been more static.
9.4.2 Standard-Setting
One important task of the WOAH Assembly is the adoption of codes and standards and other rules. The standard-setting activity seeks to contribute to a worldwide regulatory harmonization whose twofold aim is (just like the purpose of the entire organization) to ensure a high level of protection of animal health and welfare and to remove undue sanitary obstacles to animal and animal product trade.Footnote 24
Working for this dual purpose, the two major standards produced by the WOAH are the two Animal Health Codes: the Terrestrial Animal Health Code (TAHC)Footnote 25 and the Aquatic Animal Health Code (AAHC).Footnote 26 These Codes are updated and revised annually, under the responsibility of two code commissions which each comprise six elected members. The final code texts are adopted by decision of the Assembly.Footnote 27 The 2025 edition of the TAHC comprises sixteen sections, covering topics ranging from animal transport over slaughter and killing for disease control to the use of animals in research and education, plus chapters on agricultural animals (beef-cattle, broiler chicken, dairy cattle, and working equids).
All Member States are represented in the Assembly ‘by one permanent technical Delegate’ (who should belong to the Member State’s official veterinary services). These delegates are appointed by the Members States in differing procedures, depending on the State. They act under the instruction of the State’s bureaucracy. Each delegation has one vote in all matters that require voting and in all ballots.Footnote 28 In practice, many proposals are adopted by consensus (absence of a formal counting of votes).
The WOAH standard-setting activity is science-driven. All leading officials are veterinarians or scientists, and the elaboration of standards is based mainly on scientific input. This approach bears some guarantee of rationality and distance from political influence. However, the scientific approach cannot completely rule out capture by industrial interests (agro, food, and pharmaceutical) that are often harmful for animal welfare.
Given the importance of influencing (up to capturing) the organization through the ‘golden reigns’ of funding, it is laudable that the final reports formally acknowledge voluntary financial contributions by Member States, the EU, and animal friendly non-governmental organizations (NGOs). No direct industry donations are mentioned.Footnote 29 To conclude, the WOAH standard-setting does not enjoy any democratic legitimacy, but it enjoys some legitimacy through scientific expertise, participation of stakeholders (except the animals themselves), and a modest degree of transparency. Animal interests are hardly brought to bear in the processes.
9.4.3 Legal and Other Functions of the Standards
The WOAH standards are not formally legally binding. Nevertheless, the animal health standards are, due to their solid scientific base and their institutional and legal link with the Agreement on Sanitary and Phytosanitary Measures (SPS), a crucial economic factor for States seeking to trade animals and animal products.Footnote 30 The reason is that conformity with these standards largely determine whether a State’s sanitary measures constitutes an unlawful trade barrier or not under the WTO and under regional or bilateral regimes modelled on the WTO regime.
The WOAH animal welfare standards are a more novel output. The welfare chapters in the Codes are recommendatory in form, and vague in substance. As a general matter, such secondary law must be taken into account in good faith by the organization’s Member States.Footnote 31 Moreover, the standards are referred to or otherwise incorporated into the national laws of most Member States, they are cited in international trade law agreements, they are a constant reference point in the work of other IOs (such as the WTO, the Organisation for Economic Co-operation and Development (OECD), and FAO), and they are also mentioned in business codes of conducts. Thereby, these standards, as shallow as they may be, affect and arguably even subject animals.Footnote 32
9.4.4 The Failed Laying Hen Welfare Standard
To illustrate the abysmal failure of the standard-setting procedures to properly take into account animal interests, we might look at the defeated attempt to introduce a laying hen welfare standard in 2021. An ad hoc working group had worked five years (since 2016) on this topic. The Code Commission had proposed a new Chapter 7.Z. on animal welfare and laying hen production systems. The drafts had been circulated five times to Member States.Footnote 33 The language of the final draft Chapter was very modest, saying that bathing areas, foraging areas, nesting areas, and perches were ‘desirable’ – not more.Footnote 34 Moreover, the chairman of the Code Commission stressed that the code was ‘not a legal text’ but a ‘recommendation’ and that the new chapter’s implementation ‘was not expected to be immediate’.Footnote 35
The EU had already in 1999 started to legislate against laying hen batteries and prescribes ‘enriched cages’ since 2012. For the EU, the proposed standards were too weak and ‘would not lead to any real improvements’.Footnote 36 The EU had requested that the word ‘desirable’ be replaced by ‘should’ in those points, ‘as this would encourage countries to gradually converge with these international recommendations, leading to a progressive improvement in the welfare conditions of laying hens in the mid to long term’.Footnote 37
But even the mere ‘desirability’ was too much for numerous southern States from all continents. They found the draft chapter too rigid and demanded ‘more flexibility’. The USA (which does not ban battery cages itself) was ready to compromise with the Global South. It is noteworthy that the industry representative, the ‘International Egg Commission’ had a say in the plenary, but no animal protection organization.Footnote 38 In the end, the reluctance of States of the Global South to commit to enrichment of cages, not to speak of outdoor areas for laying hens, prevented the adoption of the new chapter.Footnote 39 This story illustrates how basic animal interests of billions of animals who suffer extreme harm (most painful leg disorders and broken bones during their entire life span) are neglected in the standard-setting of the WOAH.
In conclusion, the organization’s decision-making, including its standard-setting activity, is not democratic. And although the standards (in combination with the domestic law of its Member States) affect and arguably even subject animals such as the laying hens, their interests in physical integrity, health, and well-being hardly come to bear in the standard-setting process. This situation should and could be changed. The following sections lay out the complicated underlying concepts and some concrete proposals for procedural design.
9.5 Conceptual Issues
The exploration of practical possibilities for bringing animals to bear in the decision-making of IOs such as WOAH depends on some conceptual groundwork.
9.5.1 Interspecies Democracy
The neglect of animal interests in the political process has been picked up in interspecies democratic theory.Footnote 40 The problems are most discussed under the headings of animal citizenship and political agency. Various proposals have been made to define a new political status for at least some animals in politics.Footnote 41 They range from animal ‘enfranchisement’ without animal citizenship (Robert Garner)Footnote 42 up to ‘animal citizenship’ for domesticated animals (Sue Donaldson and Will Kymlicka).Footnote 43 An intermediate position which I find most convincing is to qualify animals as political patients and part of the demos with the ‘passive political right’ to have their interests considered in political processes (Janneke Vink).Footnote 44
9.5.1.1 Animal Citizenship
The most radical view of animal citizenship most straightforwardly leads to animal representation: when domesticated animals (such as dogs, cats, horses, and the like) are seen as fellow-citizens, it follows that they can and should also be democratically represented in politics.
The companion idea is the recognition of a political agency of animals. Democratic representation is normally reserved for political agents (i.e. those who possess the capacity to act politically, such as voting or deliberating). Applied to animals, Kimberly K. Smith has pointed out that animals have the ‘ability to be’. She calls this ability ‘a kind of agency’, a socially constructed agency.Footnote 45
Proponents of animal citizenship and political agency draw parallels to prior debates on the non-representation of other human groups or – put differently – their exclusion from the citizenry. In classic political theory, the democratic citizenry has been conceptualized as a group whose members are deemed to have concluded a (fictitious) social contract which grants some representatives the right to govern the others, which can be understood, due to the consent of the governed, to be ‘self-government’. However, the legal capacity to conclude this social contract was historically seen to be lacking in, for example, women and humans with cognitive disabilities who were thought to want the necessary capabilities such as sufficient reasoning faculties. Such exclusions from being a party to the social contract and hence a full citizen are today considered unfair. This argument has been extended to domestic animals. The thresholds for membership are considered arbitrary, especially as they are defined by those who are inside the circle of citizens and benefit from the threshold.Footnote 46
The consequence of animal citizenship would be that animals can and should participate in politics, and may also be ‘represented’ by humans. The assumption here is that animals can express their interests. They show humans through their behaviour what they like and what they do not like. If humans listen and watch properly, they can read the animals’ ‘facial expressions, body language, and vocalizations’.Footnote 47 Also animal acts of resistance, ‘voting with their feet’, and cooperation with humans are instances of animal speech to humans. All this then leads to ‘internatural communication’.Footnote 48 This communication is seen as being political, it is qualified as an ‘interspecies political exchange’.Footnote 49 More even, when animals utter approval and disapproval, and when specially tasked humans respond, this would form a ‘direct animal representation’ (Sue Donaldson).Footnote 50 The animal behaviour could, according to Donaldson, count as animals selecting humans (who could then act as representatives) and also redirect or sanction humans who do not act according to the animal constituency’s preferences: ‘Animals would choose (authorize) their representatives through expressions of trust and affiliation.’Footnote 51
9.5.1.2 Against Animal Citizenship
In contrast, the majority of writers opine that the theory of animals’ citizenship and political agency stretches the concepts too far and dilutes them so much that they risk becoming meaningless.
First, although animals have interests and express their preferences, they lack understanding of political processes, because they are not able to oversee the various interests that are at stake in shaping the rules of a society. Choosing a dog-food and a dog-walk is no political act. The animals’ choices and their behaviour are private and not political.Footnote 52 Instead of dragging animals artificially into political agency, we should accept the reality that animals do not act politically.Footnote 53 Relatedly, animals cannot, not even in an ideal-typical way, be seen as the co-authors of the human laws that govern and subject them, and therefore do not qualify as ‘self-governed’ in the sense of (our human) democracy. Their social life is governed by their own social norms which we understand only imperfectly.
Second, places such as lawns and parks are not political forums but just public spaces. Animals cannot, or only with great difficulty, be brought into political forums such as parliaments and discussion rooms such as the WOAH standard-setting committee. As a weaker surrogate, animal films and images could be shown in those chambers. Such images might generate the desired effect of consideration of animal interests and solidarity with them.
Third, even the increased presence of animals in the public domain and screenings in parliaments at best causally influence the debates among humans. The animals themselves cannot refer to such debates in an intentional way. They are also incapable of grasping the normative content of the relevant concepts. They are, as Bernd Ladwig points out, ‘constitutively unable to see themselves as citizens of particular political communities and to take a responsible part in international relations’.Footnote 54 Therefore, their sheer presence or their affiliation expressed towards certain humans would constitute ‘representation’ only in a very loose way, to which we now turn.
9.5.2 From Animal Representation to Animal Consideration
This section argues that the difficulties of a systematic responsiveness to animals allow us to speak of animal representation only in the very broad and most literal sense of ‘making present’. The job of political representatives is to render politically present to an audience those who are not physically present in the forum that takes political decisions.Footnote 55 Several aspects of the complex concept of representation are especially important for a (potential) political representation of animals.
9.5.2.1 Animal Agoras?
At first blush, the idea of representing animals which are, according to most laws of the world, things (res) seems to benefit from the post-structuralist approaches to representation. However, when Bruno Latour speaks of an ‘Assemblée des choses’, he understands representation in a very loose way that also blurs the (linguistic, pictorial, and narrative) meaning (speaking ‘of’ an absent actor/entity) with the more typically political meaning (speaking ‘for’ the absent).Footnote 56 The (post-structuralist) debates on the difficulties of representation will not be pursued here.
Another relevant point is the current attention paid to secure some degree of descriptive representation. It is now widely assumed that marginalized and neglected humans (minorities, migrants, indigenous, people with disabilities, and others) should be at least partly represented by others who share (physical or social) traits with those absent. Those present can then perform a ‘politics of presence’, inter alia by raising awareness, bringing life experience to bear, and serving as role-models for those who are absent and motivating them to engage in politics.Footnote 57 Again, Sue Donaldson’s model seems to fit at first glance. The proposal to create ‘multispecies commons’ or an ‘animal agora’ such as lawns and parksFootnote 58 is reminiscent of the above-mentioned ‘politics of presence’, where some individuals depict those who are absent in the political forum and render them visible to the audience. The above-mentioned functions of descriptive representation such as awareness-raising can to some extent be delivered by the present animals. However, the animal individuals who are ostensibly rendering visible all other animals who are physically absent, have not been chosen as representatives by those other animals.
9.5.2.2 Claim-Making and Trusteeship Over Animals
With a view to the animal question, non-democratic forms of representation are especially relevant. Historically, both the concept and practice of representation has little to do with democracy.Footnote 59 Today still, non-democratic representation is the normal form of representation of humans on the international plane. Humans are generally deemed to be ‘represented’ by their States in the decision-making bodies of IOs and when it comes to treaty-making. The governments (the executive agents) of non-democratic States (in which the largest share of the world’s human population lives) regularly speak ‘for’ their nationals, without any democratic mandate.
Relatedly, the tasks of the representatives have been traditionally conceived as sitting on a spectrum. On the one end of this spectrum, representatives are seen as ‘delegates’, as mouthpieces of the electors, in the extreme even acting upon the latter’s mandatory instructions. This has been called the ‘imperative mandate’ given to the so-called councils in the socialist and communist tradition of a people’s democracy. On the other end of the spectrum, ‘representatives’ exercise their own judgement to discover the best interests of those represented. These ‘representatives’ are not necessarily elected and recalled in democratic elections. It is then a matter of vocabulary whether these ‘trustees’ (or guardians or fiduciaries)Footnote 60 still fall under the umbrella of representation (as non-democratic representatives) or not.
The recent theory of representation has, in a ‘constructivist turn’, situated the typical task of representatives more on the latter end of the spectrum.Footnote 61 Michael Saward and others have elaborated that representatives in any case shape the interests that they claim to represent. Neither the interests nor the constituencies lie around ready for representation, but first have to be constituted in the very act of claiming to speak for them.Footnote 62 From this perspective, the representation of animals by humans does not look categorially different from interhuman representation, because in both constellations, a creative and pro-active role is indispensable. Indeed, Sue Donaldson’s conceptualization of animal citizenship fits well with Saward’s theory of representation. If all interests are anyway ‘constructed’, shaped, and articulated in representative claim-making, this can also be done with animal interests. Human representatives construct them and can feed them into the (human) political processes. There is some extra work needed for construing the relevant interests across the species line, but this is just a matter of degree.Footnote 63 The normative drawback of the ‘constructivist’ view of representation is that it is not democratic, because it ultimately makes the representative the judge of what those represented may want: when the representative shapes or actually makes the latter’s interests, he becomes a guardian.Footnote 64 And this indeed resembles the relationship between the human intermediaries and the animals.Footnote 65
I submit that while undemocratic practices of ‘representation’ persist, democratic representation is normatively preferable. Democratic representation requires that persons whose interests are affected by (or subjected to) the decision-making have an equal opportunity to influence the decisions by selecting (through elections or otherwise) and recalling (disempowering) their representatives. Mechanisms of selection and recall prevent the neglect of interest of those who are absent; they secure ‘responsiveness’ (Hanna Pitkin’s term), an element of what we now call accountability.Footnote 66
The act of voting, thereby replacing one representative with a new one, is the typical democratic sanction that forms part of accountability. Feeble accountability can be realized by means that are softer than elections, such as reporting from the representatives to the represented, through other transparency measures, and through hearings. The possibility of critique can amount to a reputational ‘sanction’. The non-availability of strong sanctions makes the accountability weaker. If it is too weak, a scheme of representation (and of accountability) should best not be called ‘democratic’. This is a matter of degree and of a minimum threshold.
9.5.2.3 Claimed Versus Authorizing Constituencies
Laura Montanaro has examined (transnational) CSOs as ‘self-appointed representatives’.Footnote 67 According to her, CSOs such as the WWF can under certain conditions, despite not being elected, nevertheless count as sufficiently ‘democratic’ representatives. Montanaro argues that the representatives need not inevitably render the accounts to the interest-holders themselves (the represented, i.e. the actual or ‘claimed’ constituency). Rather, the account-receivers could be someone else (a second constituency that Montanaro calls the ‘authorizing constituency’). Thus, the WWF or PETA could make representative claims for and on behalf of the animals by rendering accounts to proxies such as the members and the financial sponsors of the organizations.
Applied to our issue, the ‘claimed constituency’ are the animals, and the ‘authorizing constituency’ are members of the animal CSOs, their sponsors and donors. At this point, it should be recalled that when it comes to decision-making in IOs, CSOs only have a voice in these processes, not a vote. This means that the ‘authorizing’ constituencies (the CSOs) are relatively weak anyway.
The next question is whether IOs themselves can be seen as having two constituencies, as in Montanaro’s conceptualization. The triangular scheme of self-appointed representative – claimed constituency – authorizing constituency could (with some modification) be applied to IOs. The IOs are not (unlike the CSOs) ‘self-appointed’ but they are set up by States to fulfil certain functions. Thus, the WOAH could be seen as making representative claims for animals as its claimed constituency, and still have the Member States as its ‘authorizing constituency’. Note that this model accepts that the accountability of the representatives to the authorizing constituency is not secured through elections, but for example by withdrawal of financing to the organization, or exit (such as Japan’s denunciation of the ICRW and its concomitant withdrawal from the IWC in 2019). Such an exit is not a democratic accountability mechanism but a different way of expressing disapproval which at best generates some weak accountability.
One possible tool to hold the representatives accountable to the relevant constituencies are certifications or audits by third parties, notably by CSOs. Some practice in this direction exists both in global governance and for animal issues.Footnote 68 This parallel evolution of practices in IOs generally and with regard to animals in domestic governance shows that the problem is (to some extent) analogous: it is the lack of control by those who are absent. CSOs could accredit or certify that the animal intermediaries (‘representatives’ in a loose sense) fulfil certain criteria of quality and reliability.Footnote 69 Such a scheme could be introduced in WOAH and would help to bring animal interests more to bear in its decision-making.
9.5.2.4 ‘Surrogate Representation’?
At this point we need to accept the reality that the animals cannot select nor recall any human ‘representatives’ themselves. The selection and recall of these humans must be done by other humans who act in the interest of animals. The terminology used for such schemes varies. Those humans who chose (by election or otherwise) and receive the accounts are ‘proxies’ (to use the term coined by Andrew Dobson with a view to ‘representing’ future generations of humans)Footnote 70 or the ‘second constituency’ (to use Laura Montanaro’s term).Footnote 71 The entire scheme has been called a ‘surrogate representation’,Footnote 72 with a ‘surrogate accountability’.Footnote 73
However, the challenge for all variants is to secure that the proxies indeed ‘stand for’ the first, the ‘claimed’, constituency. All schemes cannot overcome the fundamental fact that the animals – although they can articulate their interests – are not able to select and recall representatives in the human-dominated society. Those who receive the accounts and can draw consequences would never be the animals themselves, but some other institution staffed with humans acting for the animals.
I conclude that all forms of speaking ‘for’ absent actors who cannot themselves select and recall (through elections or otherwise) are only a quasi-representation or ‘representation’ in quotation marks. This is in line with the terminology of Hanna Pitkin who considers long-term arrangements for securing a regular, systematic potential responsiveness as a key feature of ‘representative government’ as we understand this elusive concept today.Footnote 74 I therefore prefer to call these humans intermediaries, because they stand between the animals and the decision-makers. They are – towards the side of the animals – paternalist speakers for the animals. Towards the side of the actual decision-makers (e.g. the Assembly of the WOAH, or a democratic national parliament) these intermediaries may (in the future) be equipped with a range of diverse powers, depending on the institutional framework.Footnote 75
Importantly, in the absence (and genuine impossibility) of mechanisms of election and recall, this scheme of human intermediation needs to build in other mechanisms to prevent the abuse of power of the human intermediaries. The historic experience of abusive guardianship in public and international law (colonies and mandate territories), and in private law (guardianship over women and children) proves the necessity of such safeguards.Footnote 76 These are also important for the procedures of considering animals in human political processes.
To conclude, what matters is not the label but the legitimate request to upgrade or strengthen the role of animals in political processes. Independently of the label given, new schemes to bring animal interests to bear in human politics are warranted in normative terms to mitigate the currently unfair neglect of animal interests. With this objective, Janneke Vink proposes to design human ‘institutions so that they are forced to pay heed to animals who cannot defend their interests in a political context. Thereby, the interests of animals are institutionally safeguarded and animals get the political consideration they deserve’.Footnote 77 Vink has called this the ‘consideration right’ of animals.Footnote 78 Such a consideration right would not lead to democratic animal representation with accountability to the animals themselves, but to a proper ‘animal consideration’. This would alleviate the current legitimacy problems of human political processes to some extent.
9.5.3 The Circumscription of the Animal ‘Constituency’
A key question is how and where to draw the boundaries of the group that needs to be represented (or considered) in a given forum.Footnote 79 We call this group the ‘constituency’.Footnote 80 For decision-making in States, this constituency is formed by the citizens, and therefore the question of animal ‘citizenship’ is so important (see above, Section 9.5.1). IOs do not have a territory and no acknowledged citizens. Therefore, the group to be represented cannot be defined by ‘belonginess’ or ‘community’, as often proxied by residence in a given territory and captured or symbolized by citizenship.
With a view to animals in relation to the decision-making by IOs, the ‘boundary question’ presents itself as a double question: the groups potentially affected and even subjected to decisions by organizations are not only spatially dispersed, but potentially also comprise more than humans. In order to bring animal interests to bear in the decision-making of IOs, the boundaries of the constituency must not only be pushed across the State boundaries, but additionally across the species lines (see above Section 9.2.2).
So the question is how to circumscribe the circle of animals whose interests should be brought to bear. A widespread premise in democratic theory is that the collective decision-making processes (especially beyond the Nation-State) should grant each human an equal say in decisions affecting him or her. This premise is relevant both for decision-making in IOs, and for the unilateral decision-making of States with transnational repercussions for people at other places of the globe, an issue that is not dealt with in this chapter.
The all-affected approach has been extended to animals. It has been said that there is no theoretical reason why the ‘all-affected’ principle should not transcend the species barrier.Footnote 81 Following Robert Garner, the all-affected principle demands ‘the inclusion of animals if and when their interests are affected by decisions made. It is clear that many political decisions that are made do impact, often detrimentally and often profoundly, upon animals. Therefore, it follows that animals (more specifically humans acting for animals) ought to have a say in those decisions.’Footnote 82
It is submitted here, in line with other scholarship, that the so-called ‘all-affected’ principle is too broad. Basically, all human decisions on infrastructure, on the economy, on food, education, sports, affect different groups of animals. If all who are ‘affected’ by decisions of a State or – for the purposes of this chapter – of an IO were entitled to be represented (or only considered) in its decision-making, this would require to bring into the picture an amorphous group. This is neither morally not warranted nor practicable. Limitations and qualifications are needed.
The desirable and necessary limitations and qualifications can be reached in different strategies. The ‘constituency’ could be limited to a certain group of actors, namely sentient animals.Footnote 83 This is still an exceedingly broad and vague group. A different approach to demarcate animal ‘representation’ would be to demand such representation only when fundamental or basic interests of animals are probably and deeply affected (‘no slaughter without representation’).
Alternatively, or cumulatively, the idea of ‘subjection’ – as propagated for the human say in political decision-making – could be applied to animals. ‘Subjection’ can be understood in different ways, ranging from being under the formal purview of the law, to being under coercive authority, to being under the sheer exercise of physical power.Footnote 84 Animals are in a special way subjected to human laws. Although animals are not expected to abide with the law, they still form the object of regulation, and the human laws apply to them. Also, animals are in factual terms fully dominated through physical violence by humans. Where this is authorized by law, the coercive apparatus of the human State condones this domination. Due to the animals’ lack of understanding, the formal aspect of subjection is less relevant, but the physical aspect all the more. In that sense, animals are subjected by human decision-making, also when such decisions are taken by IOs.
The aspect of coercion is modified by the fact that most organizations do not possess any enforcement authority, also not over the animals. This does not prevent the animals’ constant and intense reduction of life chances and options for flourishment due to the acts of States that implement the relevant organizational acts. Many animals are in this sense ‘subjected’ to a number of decisions by IOs, most surely to the relevant standards set by WOAH for their species.
The problem remains that the criterion of ‘subjection’ does not lead to any clear boundary of the ‘constituency’ either. But such blurriness is not fatal if the animal ‘citizens’ do not have a vote. Taking their interests into account needs no firm boundaries. The circle of who must be taken into account can be blurry, and it can also be graded. My tentative view is that there should be no hard distinctions along species lines because this would be skewed in favour of rare animals. It also seems that not only domesticated animals but also wild animals need to be considered, because they, too, are harmed by human activity.Footnote 85 Further explorations must be left for another paper.
9.5.4 Animal Deliberative Democracy
With a view to a democratization of decision-making in IOs, many theorists favour deliberative democracy as an alternative or complement to the ‘vote-centric’ models of democracy. At the same time, this approach has been pursued for environmental and animal-related issues.
Deliberative elements are first of all debates with the goal of reaching an acceptable decision based on good grounds (‘deliberations’), the participation of all affected (‘stakeholders’), and transparency. In IOs (as in other transnational and international forums), deliberations seem to be easier to realize and are indeed practiced widely (as opposed to transnational or global elections that are fraught with practical and conceptual problems).Footnote 86 Along this line, Sabino Cassese has called deliberations a ‘surrogate’ for the lack of democratic decision-making by IOs.Footnote 87
Environmentalists have espoused deliberative democracy, because deliberative elements are thought to yield better outcomes for nature.Footnote 88 The environmentalist ideas have been applied to animal governance.Footnote 89 Some authors count communicative exchanges between humans and animals as ‘animal deliberation’.Footnote 90 Indeed, it is intuitively plausible that the ostensibly beneficial features of deliberations might serve to bring animal interests to bear more in the political process. Generally speaking, deliberations probably enhance rationality, intensify the consideration of the interests of differently situated others, and facilitate mutually acceptable outcomes. They presumably generate more truthfulness, more reason-giving, more social learning, and most of all more reflexivity. All this means that democracy without deliberations would be deficient.
‘Animal deliberation’ might therefore be a beneficial procedure in IOs such as WOAH. However, the concept of democracy is overstretched when it is applied to mere deliberations without the possibility of electing and recalling representatives. In the absence of voting, deliberations by themselves do not amount to democracy (which needs deliberation and voting), and deliberations do not necessarily involve representation at all, because also those who are absent from a concrete decision-making forum can still participate in deliberations around the decision-making. ‘Animal deliberation’ might enhance the consideration of animal interests in IOs such as WOAH but would not transform them into more democratic institutions.
9.6 Concrete Proposals
Political theorists have suggested various novel ways for bringing animals into political (legislative or decision-making) processes.Footnote 91 These mainly refer to political processes in democratic States where the principal lawmaker is a democratically elected parliament. Alasdair Cochrane, for example, demanded: ‘Animal representatives should act as trustees of the interests of all non-human members of our communities – individuals whose fates are very much entangled with our own. And they should seek to understand those various interests and feed them into impartial deliberations with other policy-makers in their formulations of the public good.’Footnote 92 Cochrane also sought to ‘explore how certain existing global political institutions, such as the UN General Assembly, might be radically and democratically transformed for the protection of the worth and rights of all sentient creatures’.Footnote 93
The proposals often use the word ‘representation’ (for example a ‘fiduciary representation’ of animals)Footnote 94 that I will place in quotations marks here, in order to highlight that it is not representation in a strict sense (with accountability to the animals themselves).Footnote 95 Still, these schemes seek to bring animal interests to bear in the political process by allowing humans to ‘speak for and on behalf’ of animals (rather than to ‘stand for’ or to ‘embody’ animals). For the reasons explained above (Section 9.5.2.4), this activity is called animal consideration (or animal advocacy and animal defence) here.
In the literature, the names given to the humans who are performing the job of bringing animals’ interests to bear in human political processes inter alia depend on the type of political forum (parliament or international conference), on the surrounding governance scheme (a democratic Nation-State or an IO), and on the competences given to those humans. They are called animal advocates, defenders, speakers, commissioners, guardians, or trustees. For the reasons explained above, I prefer the name ‘intermediary’ (see above Section 9.5.2.4).
The novel ideas differ with regard to who is eligible or appointable, how (and by whom) the human intermediaries are selected and controlled, where these humans act, and what their tasks are. As for the tasks, the humans could be allowed to vote on legislative proposals (direct participation as decision-makers); they could be given a right to elect members of a parliament; they could be granted a right to be informed and heard; and they could give advice.
On the domestic plane, in democratic States, these humans’ mediating and promotional activity (in the interest of animals) feeds into democratic lawmaking processes. On the international plane, and especially in IOs, the modes of selecting and controlling those human intermediaries and also their task in the decision-making process would be different ones.
With regard to their selection, the animal intermediaries could be directly appointed, like experts, by the government or by a governmental body. These intermediaries would then enjoy little democratic legitimacy. If the animal intermediary shall be an elected office the question is who shall be eligible, by whom, and in which procedures. On this plane, Pablo Magaña distinguishes ‘unrestricted’ models from ‘restricted’ models.Footnote 96 In the main ‘unrestricted’ model, all human voters would be allowed to elect, with a second vote, specific animal ‘representatives’.Footnote 97 However, these ‘representatives’ would be accountable to the human voters and therefore have little or no incentive to focus on animals’ interests.
The ‘restricted’ variants mean that only some humans elect or appoint animal ‘representatives’. Building on a proposal that Andrew Dobson made with regard to the ‘representation of future generations’, Alasdair Cochrane suggested that some humans who have demonstrated a concern for and expertise on animal questions should form a ‘proxy electorate’. They would stand for the animals (or for some animals) and thus would be allowed to elect (other) humans, the ‘animal representatives’, whose task would be to defend (only) animal interests.Footnote 98 But this model violates political equality because some humans (the ‘proxy electorate’) get two votes, one for the ‘all-purpose’ representatives and an additional one for the animal ‘representatives’.Footnote 99 That problem could be solved by forcing the proxy electorate to choose in which elections they want to use a vote; they could give up their general vote in exchange for a vote for the animal ‘representative’.Footnote 100 However, this scheme would not guarantee that any animal ‘representatives’ are elected at all.
Another problem is the circumscription of the proxy electorate: how to decide which humans form the ‘animal lobby’ (the proxy electorate) and should therefore be allowed to elect animal ‘representatives’? Alasdair Cochrane has suggested to form the proxy electorate – which he calls ‘deliberative citizen assemblies’ of voters – by simple lottery.Footnote 101 The lottery would resemble the random selection of lay judges or jury members in the criminal courts of many legal systems. These randomly selected citizens might be offered the choice to vote for animal ‘representatives’ (in addition to, or instead of voting for ordinary representatives in the general elections to parliament).Footnote 102
However, and importantly, all these suggestions suffer from the fatal flaw that they falsely presuppose that animal affairs can be neatly separated from other societal affairs. In reality, these affairs are entangled. More life, liberty, and space for animals inevitably requires to restrict human liberties (to build houses, to eat animal food, to use natural resources, and so on). It is impossible to separate the political competences of the old-fashioned human representatives from those of the novel ‘animal representatives’.Footnote 103 Therefore, if ‘animal representatives’ are not elected by everyone in a given jurisdiction and nevertheless are granted a power to participate in political decision-making, their participation (which impinges on human affairs) creates a certain democratic deficit. Human interests will be affected by decisions that are not taken under full popular control. The animal ‘representation’ would be a counter-majoritarian institution. This is not inconceivable in a democracy, as a complement to the majoritarian institutions, but the democratic cost must be factored into any normative assessment of the proposed scheme.
Moreover, all proposed models confront the unyielding fact that any type of ‘representative’ cannot be politically accountable directly to the animals themselves, due to the animals’ lack of political understanding.
The transposal of the schemes to decision-making in IOs faces additional obstacles and requires additional modifications. One aspect is that relevant organizations such as WOAH and WTO, and bodies such as the CITES COPs, the UN Framework Convention on Climate Change (UNFCCC) COPs or the IWC fail to represent humans in a democratic fashion, to begin with.
Further obstacles to a ‘representation’ of animals on the side of potential human representatives or intermediaries are not unsurmountable. Ignorance, bias, and the value/action gap exist but can be reduced by constant reflexivity.Footnote 104 Institutional problems such as the preponderance of organized vested interests, as embodied in the meat lobby and the agricultural lobby, are not uniquely a problem for the representation of animal interests but generally distort political processes. They can be addressed with stricter transparency and conflict of interest rules.
Besides building new institutions, new and additional procedures such as animal mainstreamingFootnote 105 or animal impact assessmentsFootnote 106 could be weaved in lawmaking procedures in order to bring animal interests to bear here. All these institutions and procedures could be combined. It is an empirical question whether such a cumulation of, for example, elected intermediaries, non-elected civil society activists, ombudspersons, and mainstreaming would altogether lead to more animal friendly legal outputs, both in domestic legislative (democratic) processes and in the decision-making of IOs.
9.7 Conclusions
It is desirable (normatively appropriate) to bring animal interests to bear in the decision-making of Nation-States and IOs. But such integration faces structural and permanent obstacles that root in the animals’ lack of understanding and judging of human political processes. It is often said that animal interests are ‘mute’ or that animal individuals are ‘voiceless’.Footnote 107 This is an exaggeration, because animals can and do express their preferences. However, they cannot hold humans who disregard their interests to account. These physical limits of human-animal communication not only foreclose representation through elections but also prevent other, looser forms of responsiveness and accountability to the animals themselves. I therefore prefer the term animal consideration rather than animal representation in (democratic) political processes.
Along this line, the institutions and procedures for decision-making in IOs can and should be much improved. To return to the example of WOAH, the office of an animal ombudsperson with a robust mandate should be created; the voice of pro-animal CSOs should be strengthened through compulsory notice-and-comment procedures and extended speaking rights in the WOAH Assembly; all standards should go through mandatory animal welfare impact assessment; and the ‘scientific’ basis of the standards should be broadened to comprise also ethical arguments.
All attempts for upstepping the existing rudimentary schemes in the direction of a better and stronger consideration of animal interests in human politics will require deep cultural and social change. They depend on the cultivation of a ‘sentient solidarity’Footnote 108 or ‘interspecies solidarity’Footnote 109 which is to a large extent beyond the purview of the law.
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