Trophy Hunting, the Race to the Bottom, and the Law of Jurisdiction

Abstract

Cross-border trade, industry outsourcing, and animal migration are increasingly challenging states that want to take their commitment to protecting animals seriously. When multinationals threaten to outsource, even the most powerful states succumb to economic pressure and give corporations what they so avidly desire: laissez-faire. Some argue this is an inevitable consequence of globalization; others say it prompts us to question whether animal law is not better off being regulated by international law. This chapter takes a third path. Instead of proposing that nations seek agreement on low and mostly ineffective animal welfare standards, it posits extraterritorial jurisdiction as a promising avenue for animal law, and takes trophy hunting as its example to illustrate the many jurisdictional options for states to overcome regulatory gaps in animal law and make animal issues more visible on the international plane.

Revised version of the original published article “Can Extraterritorial Jurisdiction Help Overcome Regulatory Gaps of Animal Law? Insights from Trophy Hunting“ by Charlotte Blattner, American Journal of International Law Unbound, Volume 111, 2017, pp. 419–424. The original article was published as an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/).

1 Introduction

Cross-border trade, industry outsourcing, and animal migration are increasing challenges for states that want to take their commitment to protect animals seriously. When multinationals threaten to outsource, even the most powerful states succumb to economic pressure and give corporations what they so avidly desire: laissez-faire. Some argue this is the inevitable consequence of globalization, others say it should make us question whether animal law ought to be territorially bound and local, and emphasize the need for an international treaty in animal law. This chapter takes a third path. Instead of proposing that nations seek agreement on low and mostly ineffective animal welfare standards, it argues that extraterritorial jurisdiction is the more promising avenue for animal law, and takes trophy hunting as its example to illustrate the many jurisdictional options for helping animal law overcome regulatory gaps and making animal issues more visible on the international plane.

2 Regulating Trophy Hunting in an Era of Globalization: A Lost Cause?

In 2015, the world was outraged to hear that Cecil, a black-maned lion, was shot and killed by an American game hunter in Zimbabwe. Cecil was a resident of the Hwange National Park, where he was a star attraction for many visitors and part of a long-term national study on lion movement. Cecil was lured out of the park by carcasses tied to a car, and then shot with a bow and arrow by Walter Palmer, a US citizen who paid 50,000 USD to kill Cecil and claim his remains. Severely wounded, Cecil ran from the hunters for more than 40 h before they fired the fatal shot. When the public learned of these events, Palmer faced what some journalists described as ‘a global storm of internet indignation,’ and ‘an online witch-hunt’.¹

Though Cecil’s killing got abundant media coverage and sparked public outrage, many other such killings for trophies go unremarked. In trophy hunting (so-called sport or recreational hunting), animals are killed for their head, horns, paws, or skin.² Typically, hunters target the rarest and biggest animals, or those who are hardest to chase and shoot. Trophy hunting is practiced in many states, but has been subject to increased public scrutiny in the US due to its high imports. According to the Humane Society International, the US imported 1.26 million wildlife trophies between 2005 and 2014.³ Most trophies originated in Canada and South Africa; a smaller number came from Argentina, Botswana, Mexico, Namibia, New Zealand, Tanzania, and Zambia. Trophy hunters are known to pay large sums to kill exotic animals and take possession of their dead bodies. For an African lion, trophy hunters pay between 13,500 and 49,000 USD and for an African elephant, between 11,000 and 70,000 USD. Among the animals hunted and imported into the US, 32,230 were members of the African ‘Big Five’: 5600 African lions, 4600 African elephants, 4500 African leopards, 330 Southern white rhinos, and 17,200 African buffaloes.⁴

Although the US prohibits the importation of (at least some) trophies under the Endangered Species Act (ESA),⁵ illegal trade of trophies continues unabated. One reason for this, as is claimed on a recurring basis, could be the lack of enforcement of the ESA, or of the Convention on International Trade in Endangered Species (CITES)⁶ upon which the ESA is based. Another reason could be that trophy hunting is still legal in more than twenty African countries,⁷ so regulating the importation of trophies does little to stop the ongoing endangerment of or threats to wild species. Arguably, the laws of trophy-importing states would be much more effective if they were not to apply at such a late point in time, namely when the animal is dead already. These states would ideally regulate the state of facts earlier, by governing acts of planning, hunting, shooting, and preparing an animal for exportation. Given the fact that—if we take Cecil’s case—the lion was killed on Zimbabwean territory, however, prescriptive jurisdiction over trophy hunting prima facie seems to lie with Zimbabwe. Any effort on part of importing states to chime in on the Cecil case before the animal crosses the border therefore would seem to violate Zimbabwe’s sovereign jurisdiction.

3 Are Treaties the Solution?

Most states recognize that we live in a highly intertwined world, where daily activities across borders easily give rise to state interests reaching beyond domestic territory. A mediated view might therefore suggest that multiple states have a legitimate interest in the case—Zimbabwe as Cecil’s home state and the place where his killing took place, and the US as the perpetrator’s home state—, and urge them to come to an agreement. Proponents of this mediated view might also suggest that the parties must seek to work towards an international treaty to prohibit hunters from killing animals that belong to endangered or threatened species. Such a treaty would ensure that all states’ views, preferences, and interests were taken into account, and it would be carried by their willingness to cooperate. Treaty making seems to offer the quickest way to resolve conflict in a manner acceptable to all parties over the long-term, and which is hence likely to be enforced by them.

But how feasible is this proposal? The difficulty of coming to a broad agreement is easily underestimated, and failure to reach agreement is the rule, rather than the exception. Even in the specific and narrow context of protecting endangered species, states profoundly disagree over the optimal regulatory measures needed to thwart trophy hunting. How can this be explained? In a seminal article on antitrust law, Andrew Guzman used an economic analysis to determine the probability states would conclude an international treaty on jurisdictional matters. He hypothesized that economic incentives are states’ primary motive for seeking or rejecting a treaty, and argued that finding common ground for a treaty will be difficult, if not impossible, when consumers and producers are unevenly distributed among states.⁸ Let us assume state A is a majority world country,⁹ strongly influenced by investors, and state B is a minority world country, presumably investment-exporting and, therefore, more consumer-oriented. According to Guzman, the optimal policy for state A is to have no policy, since welfare losses are borne by consumers abroad. The optimal policy for state B, however, is to regulate at a level that increases efficiency gains for consumers.¹⁰

Guzman’s probability analysis can neatly be extrapolated to animal law, because economic considerations play such an important role in its policy-making, and because a large portion of the world’s animal products is produced in the majority world. Let us again hypothesize that state A is investment-driven while state B is more consumer-oriented. For state A, the optimal solution is for animal production to be unregulated, so it will tend to under-regulate. For state B, the optimal solution is regulation that better satisfies consumer preferences, so it will tend to overregulate. Both states are biased to disproportionally protect either producers or consumers. Based on these disparate preferences, the likelihood that these states agree on a set of norms that allocate jurisdictional competence among them is extremely low. Moreover, states in Zimbabwe’s position are unlikely to prohibit practices that generate considerable income revenue for them. These considerations show that treaties, designed to determine the jurisdictional parameters of animal law, are a less feasible policy option than they might initially appear.

Even if feasible, concluding an international treaty might not be desirable in the first place. A treaty may frustrate the very reason for which its conclusion is sought, by boiling animal laws to the lowest common denominator and by driving a wedge between different cultures and societies concerning the question of what the ‘optimal treatment’ of animals is. Also, the risks entered by waiting for an international agreement to form—risks that are born by the animals who are directly and indirectly affected, by local communities that rely on these animals, and by ecosystems in which animals play a key role—, make deferring the issue a poor option.¹¹ One could argue that the downsides of waiting for an agreement will easily be outbalanced by the benefits of coming to an agreement, but this view greatly underestimates the transaction risks. Since trophy money typically moves to the state that offers hunters the cheapest prices at the lowest level of regulation (hence, to state A), state B’s efforts to protect animals will always be undermined.¹² The time allocated to finding an agreement is thus likely time granted to a competition towards laxity, from which animals will suffer most.¹³

4 The Promises of Extraterritorial Jurisdiction

This is where the benefits of extraterritorial jurisdiction come into play. Extraterritorial jurisdiction, for the purposes of the present inquiry, refers to a state’s authority to prescribe law over persons, property, or events on foreign territory.¹⁴ Given the diverging views on and within animal law, there is a justified concern that extraterritorial jurisdiction might only exacerbate existing tensions. While these risks can never fully be excluded, judging extraterritorial jurisdiction solely on this basis fails to do justice to the concept and its promises. A noteworthy promise of extraterritorial jurisdiction is that the various forms of overlapping and concurring laws will create a dense jurisdictional net across the globe. This promise is famously defended by Schiff Berman and yields two important benefits.¹⁵ First, the prima facie permissibility of multiple jurisdictional assertions that overlap and concur decreases the likelihood of regulatory gaps in animal law: ‘Let both States assert jurisdiction.’¹⁶ Second, extraterritorial jurisdiction creates opportunity for political deliberation and nuanced negotiation, for adapting sweeping or insufficient laws, and leaves space for creative innovation and competition. The legal pluralism that emerges from extraterritorial jurisdiction makes apparent its nature as a vital, dynamic tool that could help improve social welfare in an age of globalization, including animal welfare.¹⁷

Consider the regulatory steps taken by the US to protect dolphins during the 1990s. In response to public outrage about the mass death of dolphins caused by common methods of fishing for tuna, the US banned imports of tuna sourced by certain fishing methods. The US’ efforts were soon after crushed at the WTO, where it was accused of protectionism.¹⁸ Though we can argue at length about the underlying motive of the US, what is important about this dispute is that it led to the creation of the International Dolphin Conservation Program (IDCP). In 1999, the US brought together Belize, Colombia, Costa Rica, Ecuador, El Salvador, the EU, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, Vanuatu, and Venezuela to join the Agreement on the International Dolphin Conservation Program (AIDCP), whose declared objective is to eliminate dolphin mortality.¹⁹ Similarly, the EU’s efforts to ban importation of furs made from animals caught in leghold traps resulted in the US and Canada entering a common agreement with the EU and raising their standards on trapping.²⁰ Though one may oppose extraterritorial jurisdiction on various grounds, it can manifestly prompt states to adopt better laws for animals. If we wanted to pursue a similar strategy to prohibit trophy hunting, what would extraterritorial jurisdiction in this context look like? And how can it be exercised without causing conflict within the international community?

5 Extraterritorial Jurisdiction: Mapping the Options

Extraterritorial jurisdiction is a generally recognized and accepted regulatory tool in criminal, human rights, environmental, labour, antitrust, securities, and banking law.²¹ In animal law, by contrast, extraterritorial jurisdiction is still largely unexplored.²² Let us therefore, in the following, sketch possible forms of extraterritorial jurisdiction at the example of trophy hunting.

The doctrine of jurisdiction distinguishes territorial, indirect extraterritorial and direct extraterritorial jurisdiction.²³ Territorial jurisdiction regulates domestic affairs, for example, by prohibiting trophy hunting on domestic territory. Indirect extraterritorial laws also regulate domestic affairs but have an ancillary effect on foreign territory. Among those norms are import restrictions of trophies intended to protect a society from participating in despised practices through consumption; these norms may (or may not) en passant protect animals abroad. Finally, a state exercises direct extraterritorial jurisdiction when it regulates a state of fact abroad, namely by directly prohibiting the hunting of animals on foreign territory. It can do so by invoking such principles of international law as the active personality, the passive personality, the subjective territoriality, or the effects principle of jurisdiction. Here, I outline these means of direct extraterritorial jurisdiction for animal law, beginning with the lex lata.

5.1 Lex Lata Options for Regulating Trophy Hunting

Active Personality Principle

Under international law, the active personality principle gives states the right to prescribe actions of their nationals abroad. The principle is the most accepted and universally used basis for extraterritorial jurisdiction, as it relies on a loyalty connection between a state and its nationals.²⁴ In recent years, state practice has extended the principle to residents and domiciliaries operating abroad, where there is a strong enough connection between them and their home states.²⁵ A state can use the active personality principle to prohibit its nationals or residents from hunting certain or all animals, if these acts of hunting are also prohibited on domestic territory. Importantly, because double criminality for trophy hunting is not required under international law,²⁶ the US could in the Cecil case prohibit Palmer from hunting endangered animals abroad regardless of whether these countries also prohibit, or even regulate these acts. This principle is thus a highly effective means to close regulatory gaps that plague animal law.

Objective Territoriality Principle

The international community has also responded to the inadequacy of purely territorial jurisdiction by establishing the subjective and objective territoriality principles. If acts or omissions occur only partly in the territory of a state, the principles of subjective and objective territoriality cover the entire act or omission. The subjective territoriality principle establishes jurisdiction over an act that commenced in the territory of the state exercising jurisdiction. The complementary principle of objective territoriality gives the state in which the act was completed the right to exercise its jurisdiction over the entire act.²⁷ A state that wants to help end illegal trophy hunting abroad can invoke the objective territoriality principle. Since a constituent component of trophy hunting is trophy display at home, it is reasonable to argue that the act of trophy hunting is completed by the act of importation: importing the trophy is a constituent element of the crime, which is consummated in the US.

This line of argument might remind some readers of transporting rules, and specifically of the case Zuchtvieh-Export GmbH v. Stadt Kempten. In this case, the European Court of Justice (ECJ) held that harmonized provisions on the transport of animals destined for exports outside the EU apply beyond EU territory.²⁸ Zuchtvieh-Export GmbH addressed the Court in matters concerning a decision by the Stadt Kempten, whereby it refused clearance for a consignment of cows to be transported to Andijan (Uzbekistan). The Court sided with Kempten, holding that from the point of departure to the point of destination in any third country, the organizer of the journey must abide by Council Regulation (EC) No. 1/2005, by providing the necessary information on watering and feeding intervals, journey times, and resting periods.²⁹ These duties, as the Court clarified, are due during all stages of the journey, whether they take place inside the territory of the EU or in the territory of third countries. To justify the Regulation’s extraterritorial application, the Court argued that animal welfare is a legitimate objective and public interest enshrined in art. 13 TFEU and in art. 14(1)(a)(ii) and (b) of Regulation No. 1/2005 that must be respected even outside EU borders. It therefore seems that the Court qualified the transport as an export over which the EU had control qua its public morals.

While the Court’s justification is certainly understandable in the context of trade, it failed to note the crucial difference between transporting rules and export control laws. Export controls allow or disallow exports based on the laws of the destination country and extend beyond the transportation process. In contrast, laws on transport do not purport to regulate animal welfare beyond the point of arrival; they are an application of the subjective and objective territoriality principles. This difference is relevant because laws governing export controls are much more delicate, legally, than norms based on accepted jurisdictional principles.³⁰ Rather than risk venturing into a heated political debate, the ECJ could have chosen an easy and more coherent strategy by invoking the subjective territoriality principle, which would have given it full jurisdiction over cross-border animal transports.

Though states have not yet entertained this line of argument, it promises to successfully address and solve a considerable portion of cross-border issues in animal law. As states increasingly rely on the subjective and objective territoriality principles to combat business crime, corruption, and cross-border financial crimes, an extension of the principle to animal law seems only coherent.

Ordre Public Exception in Private International Law

By paying large sums to hunt animals abroad, foreign nationals are concluding a private contract with park rangers domiciled in the target country. If either of the parties does not fulfil their contractual obligations, the other party can sue. According to the general contracts rule, the courts of the state where an obligation should have been performed have jurisdiction. The contract over trophies may be twofold, encompassing both the act of killing the animal and importing the trophy to the hunter’s home country. According to the Brussels regime, which is representative of the rules in most private international law systems, a sales contract’s place of performance is the place where the goods should have been delivered,³¹ that is, the US in Cecil’s case. Even if a US court took jurisdiction, however, it is likely that the court would apply foreign law, because the Rome I Regulation gives parties the choice of law or applies the law of the seller’s domicile,³² in our case Zimbabwe. Under US law, a court has a larger margin of appreciation to enter the claim and apply its own law, based on its distinct ‘most significant relationship’ doctrine, which precludes party choice.³³ If foreign law is applied nonetheless, it likely leads to the result that trophy hunting is considered legal. The only way to avert such a judgment is to invoke the ordre public exception, i.e., showing that the application of foreign law would be manifestly incompatible with a home state’s public policy.³⁴ A strong indication for the assumption that the US should be able to invoke this exception in Cecil’s case is that 74% of the population opposes canned hunting, i.e., hunting an animal raised on a game ranch in a confined area.³⁵ An important caveat for applying the public order exception is, however, that the act contravening fundamental national values must also be prohibited on domestic territory. In this case, the US fulfils this criterion by section 9(a)(B) ESA, which prohibits hunting endangered animals within the US.

5.2 Lex Ferenda Options for Regulating Trophy Hunting

This brief overview illustrates the various lex lata options available to states that want to combat trophy hunting. Yet these options do not cover all jurisdictional interests of states, and there are good reasons to argue that the existing catalogue of jurisdictional options should be expanded to protect animals more effectively across the border.³⁶ In the following, I take a critical positivist approach to exploring novel applications of the effects principle and the universality principle, with this end in mind.

Effects Principle

Based on the effects principle, a state can exercise jurisdiction over activities outside its territory if these activities have or threaten to have a substantial effect on domestic territory.³⁷ The effects principle historically emerges from the objective territoriality principle³⁸ but is now recognized as a distinct jurisdictional principle that is chiefly used in antitrust law and which covers economic effects such as financial losses.³⁹ In the past years, the principle has been expanded to cover other types of effects, including environmental effects (environmental pollution, loss of biodiversity, etc.)⁴⁰ or reputational effects (relied on generally in cases of human rights violations,⁴¹ and in the context of corruption and sex tourism).⁴²

The latter variant of the effects principle could profitably be used to regulate trophy hunting across borders. A home country could in this sense prohibit hunting animals abroad, if its reputation is damaged by these practices. Transforming the effects principle in this manner, however, yields potential for abuse. Reputations, values, and sensitivities vary widely across states. What one state perceives as offensive, another does not. States could also easily end up imposing their public morals in a disproportionate and illegitimate way to other cultures or nations, which more likely threatens international peace. Zerk accordingly argues that this kind of effects-based extraterritorial jurisdiction would not stand a chance in international law.⁴³ The only way the international community might be persuaded to accept this version of the effects principle is by restricting the scope of its application.

As with the ordinary effects principle, the reputational effect sustained by the home country could be limited to substantial effects (i.e., shared by a majority of its citizens) that are directly felt at home, and were reasonably foreseeable to the violator.⁴⁴ The state invoking the principle would also need to show it is more affected than any other state. Reputational damage might occur, e.g., when animals abused abroad were transported there from the affected country, or when a former domestic corporation of the affected state now conducts abhorrent animal experiments abroad, or in any case where there is substantial proximity to the state exercising jurisdiction. The New Zealand Animal Welfare Act in this sense reads ‘[t]he purpose of this Part is to protect the welfare of animals being exported from New Zealand and to protect New Zealand’s reputation as a responsible exporter of animals […].’⁴⁵

Universality Principle

Under international law, the universality principle endows states with prescriptive jurisdiction over egregious crimes, regardless of where or by whom they were committed. Its legitimacy emanates from the fact that certain crimes are so serious and threatening that all states share an interest in preventing or stopping them.⁴⁶

The universality principle could be fruitfully employed to combat the most egregious crimes against animals—crimes strongly condemned by the international community. An absolute majority of states expressly recognizes that animals are sentient beings to whom we owe moral and legal duties. Anti-cruelty laws of many states are based on the idea that it is abhorrent to cause physical and psychological harm to animals or to deprive them of basic needs. An overwhelming majority of states has also enshrined the obligation to treat animals humanely and to spare them unnecessary suffering. These laws serve as proof of a universal belief that animals be properly treated: the general principle of animal welfare in international law.⁴⁷ Scholars predict this principle will develop into a norm of customary international law, concomitant with rising global concerns for animals and the on-going juridification of animal law.⁴⁸ If this proves true, states could criminalize animal cruelty and suffering that undermine fundamental values of humanity and are condemned by the world community wherever and by whomever they are committed.

The universality principle also covers crime that is not necessarily the most heinous, but which is detached from states’ jurisdictions, such as piracy.⁴⁹ States could prosecute crimes against animals, if those crimes manifestly escape the jurisdictional authority of most states. Especially if animal exploitation coincides with organized crime—as is often the case with trophy hunting and illegal wildlife trade⁵⁰—states should be entitled to expand their universal jurisdiction to ensure that those crimes will not go unpunished.

6 Trophy Hunting Is Only the Tip of the Iceberg

Trophy hunting is only one of many more cases in which the current inadequacy of international animal law manifests itself. Though most consumers like to think that animals used for agricultural production enjoy a high standard of care and are mainly produced ‘at home’, these animals are readily transported, shipped, and flown across states to save on production costs. To meet growing demand for animal products and save land and labor costs, corporations have merged into multinationals and split up production across sites in the territories of different countries. Shrimp, for instance, are harvested in the North Sea and driven 2000 miles south to Morocco, where producers profit from cheap labour. After they are shelled and enriched with preservatives to inhibit decay, they are transported back to Northern Europe.⁵¹ For other products, including meat, eggs, milk, and compound products derived from them, another couple of production steps in different states might add to this.

On-going division of labor, fewer barriers of trade, and foreign direct investments also encourage companies to disperse production over the globe. In the coming years, we anticipate a wave of agricultural outsourcing from the minority world to the majority world, prompted by heavy investments in farmland in the majority world.⁵² This is expected to be the third wave of global industry outsourcing, following the first wave of manufacturing outsourcing in the 1980s and the second wave of information outsourcing in the 1990s. Relocation and outsourcing are also common in the research industry, notably among biomedical and pharmaceutical institutions and their supplying facilities.⁵³ Overall, multinational corporations, which own most of the world’s domesticated animals,⁵⁴ are highly mobile and do not shy away from moving production to states with more lenient regulatory environments.

Given these developments, it can confidently be said that issues of animal production and protection have become so globally entangled that jurisdictional connections often cannot be traced to a single state anymore. This approximation has brought states’ regulatory particularities more sharply into focus, by accentuating remaining differences in regulation.⁵⁵ This, in turn, makes it convenient for corporations to choose home states based on the regulatory advantages they provide them, which stokes fear among states that business will move somewhere more advantageous. Rather than autonomously exercising their sovereign authority, states have begun to compete with each other through their regulatory systems, and learned that they gain a comparative advantage by designing their laws to the investors’ and producers’ liking.⁵⁶ These dynamics are commonly described as regulatory competition, also known as jurisdictional competition or systems competition.⁵⁷

As states compete over jurisdictional authority, regulation tends to converge towards laxity. Corporations predictably seek to maximize capital value, which is more likely when governments intervene less, and when corporations incur fewer costs than their competitors in other jurisdictions do.⁵⁸ To attract corporations and gain ‘regulatory market shares’, states lax their legal standards and create incentive for other states to follow suit. This competitive move eventually results in global convergence toward a lower common denominator, also known as competition in laxity or the race to the bottom.⁵⁹

Animal law theorists often argue that regulatory competition in animal law moves towards laxity.⁶⁰ The more rigidly laws insist on specific performances of corporations—such as by determining how animals ought to be bred, reared, transported, or slaughtered—the more corporations are disabled from choosing the cheapest factors of production needed to outpace competitors. Because policies that seek to improve animal welfare commonly restrict business activities, these standards tend to impede market growth.⁶¹ And vice versa, because there is always an economically more efficient jurisdiction where capital can move, unhampered regulatory competition frustrates the successful introduction of or adherence to well-established levels of animal law.

In other cases, industries merely threaten to relocate their production to prevent parliamentary or ballot initiatives from improving the legal status of farm, research, or wild animals. Such threats are often enough to prompt states to enter a state of regulatory chill, meaning they decline to raise animal protection standards.⁶² For example, in 2015, the German public pushed for a national ban on chick shredding, but the Bundestag feared that the ban might prompt hen producers to relocate their facilities to less regulated countries.⁶³ Eventually, parliament did not adopt the ban and overruled the people’s will to save 50 million male chicks per year from being shredded alive in the first few minutes of their lives. Regulatory chill—like competition in laxity—thus often defies societal demands and new scientific evidence about the complex and valuable lives of animals.

States that seek to withstand this pull towards laxity and decide to adopt stricter animal laws are often penalized. In 2006, the US tried to ban the commercial slaughter of horses for meat by prohibiting the issuance of federal funds to inspectors of horsemeat.⁶⁴ Without federal meat inspections, institutions that slaughtered horses could not run their businesses legally. Within a year of the ban, horse exports from the US to Mexico increased by 312%.⁶⁵ In other words, the entire horse slaughter industry of the US was effectively outsourced to Mexico, and this reignited societal concerns about animal welfare. The only way states can successfully counter this disconcerting development is to use the principles of extraterritorial jurisdiction outlined herein.

7 Concluding Remarks

By and large, animals lack a voice in the formation of law and have no opportunity to escape oppressive jurisdictional authority. Most states use their territorial primacy to attract foreign investment by bereaving animals—who are at the mercy of a single regulator—of protection and rights. This praxis is increasingly criticized by citizens witnessing the ‘globalization of animal cruelty’⁶⁶ and has brought jurisdictional issues to the forefront of the discussion in animal law. Ideally, these problems would be addressed and solved by concluding an international treaty in animal law. Yet, an economic analysis shows that this strategy is unlikely to work, and perhaps not even desirable, because international agreements tend to cap law at the lowest common denominator.

Extraterritorial animal law may offer a way out of this dilemma. The example of trophy hunting shows the range of possibilities the international doctrine of jurisdiction provides: the active personality principle, the subjective and objective territoriality principle, the ordre public exception, the effects principle, and the universality principle. By adopting these, we could abandon the archaic territorial conception of jurisdiction that binds individuals to it in an exclusive fashion and fences off other sovereigns. The territorial primacy a state may once have enjoyed vis-à-vis its regulatees offered ample room for misuse by bereaving regulatees—who are at the mercy of this single regulator—of protection and welfare. Thanks to the development of the modern law of jurisdiction, states can choose among viable jurisdictional options to protect animals abroad. These options are especially valuable to animals—more than to any other group that benefits from extraterritorial jurisdiction—because they still live under a totalitarian regime of law. Needless to say, extraterritorial jurisdiction runs the risk of being used to oppress or discriminate others, but if properly applied and strengthened with the necessary safety valves, it can be a powerful tool to advance our ongoing struggle for interspecies justice.