1 Global Animal Law in a Nutshell

The essays assembled in this volume analyse both foundational and current legal aspects of human—animal relationships from a global animal law perspective.

Global animal law refers to the sum of legal rules and principles (both state made and non-state made) governing the interaction between humans and other animals, on a domestic, local, regional, and international level. Given that the various ‘levels’ of regulation are normally not neatly separate but rather intermesh and criss-cross, the image of ‘marbled’ regulation might be preferable to ‘multi-layered’. The body of global animal lawFootnote 1 comprises hard law in the form of statutes and treaties and soft law such as standards issued by international organisations and voluntary labelling schemes or industry norms and codes of conduct. So the actual producers of global animal law are parliaments, governments, international institutions, business, civil society organisations, the latter often acting transnationally and in collaboration with governmental agencies. The scholarly analysis and commentary on these bodies of law constitute the academic discipline of global animal legal studies, or—for simplicity’s sake—the discipline of global animal law.

Global animal law comprises but significantly moves beyond the international legal instruments which seek to conserve endangered species,Footnote 2 to protect wild animal habitats,Footnote 3 and to uphold biological diversity.Footnote 4 These rules pay attention to collective goods, mainly for anthropocentric reasons. In contrast, they barely address the welfare of individual animals or potential rights of some animals which results in the notorious wild animal welfare gap.Footnote 5 Global animal law also seeks to emancipate itself from classic environmental law and bears some overlap with the novel branch of biolaw.Footnote 6

Speaking of ‘global animal law’ conveys the message that animal law can be best understood, applied and analysed when legal practitioners and scholars have an eye simultaneously on the various layers of the law, and on various norm types. The corpus of domestic, international, and local law, of state-made and privately generated, of hard and soft law relating to the treatment and welfare of animals has reached a critical mass which justifies summing it up as a cross-cutting matter or as a legal field of its own, under one overarching heading.

2 A Globalised Problem Requires a Global Solution

Global animal law is the response to the mismatch between almost exclusively national animal-related legislation on the one hand, and the global dimension of the animal issue on the other hand. States increasingly regulate animals unilaterally through animal welfare and protection laws, but the limited scope of national regulation within the states’ confines hampers their effectiveness. They run aloof in the face of globalisation. Because animal issues have ‘gone global’, they require global responses of the law, ideally in combination with local solutions.Footnote 7

Why and how have animal issues gone global? A number of drivers and manifestations should be mentioned here. First, virtually all aspects of (commodified) human−animal interactions (ranging from food production and distribution, working animals, animal use in research, to breeding and keeping of pets) possess a transboundary, a global, dimension. The industrialisation of meat, dairy, and fur production has massive environmental, climatic, social, and ethical consequences on a global scale. For example, health costs ascribed to the excessive intake of animal-based food arise everywhere in the world.Footnote 8 Global warming is induced, inter alia, by the abundance of cattle waste.Footnote 9 Antimicrobial resistance triggered mainly by the excessive use of antibiotics in high-density industrial farming is a global problem for human health. The loss of genetic information through the extinction of species concerns all mankind. Armed conflict in Africa is financed by wildlife poaching which is sustained by global criminal networks and illegal markets spanning to Asia.Footnote 10 Piracy off the African coasts is fuelled by the loss of income of local fishermen due to the global overexploitation of fish stocks and poses a global traffic problem. In all these examples, what is at issue are sustainability, the extinction of species, poverty, and malnutrition—all of which are global problems.

Second, growing consumer attention to animal welfare aspects in their purchasing decisions on products involving or using animals has an impact both on the industries and governments. Consumers in industrialised countries increasingly expect law-makers (for varying reasons, including anthropocentric ones such as human health and fitness) to take animal welfare seriously. The resulting political pressure not only affects the regulation of domestic production but also that of the importation of foreign animal products. For example, according to EU-wide polls, 93% of Europeans agree that ‘imported products from outside the EU should respect the same animal welfare standards as those applied in the EU’.Footnote 11 ‘Animal-friendly’ states or actors such as the EU therefore tend to either ‘export’ their animal welfare standards by demanding certifications on identical or equivalent production methods (e.g. slaughterFootnote 12), require labelling to prove equivalent production methods (e.g. cage-free eggs), or ban imports altogether. A prominent example for the latter is the EU’s prohibition of the import of seal products which the EU chiefly justified ‘in response to public moral concerns about the animal welfare aspects of the killing of seals and the possible presence on the Union market of products obtained from seals killed in a way that causes excessive pain, distress, fear and other forms of suffering’.Footnote 13 Such rising consumer awareness is a stimulus for regulatory response, which needs to be global against the background of global trade.

Third, and relatedly, businesses seeking to export their animal products into states in which the consumers are more attentive to animal welfare are paying more attention to the issue because they do not want to lose market shares. This also holds for the regulators in the countries of export if they want to support their trading industries. Along this line, a FAO report noted: ‘Animal welfare is not a new subject for regulation in most developed countries, owing to a sophisticated consumer base and greater exposure to animal welfare issues. Growing international trade is generating more interest in animal welfare elsewhere in the world, in particular in countries seeking to increase trade with Europe.’Footnote 14 In short, market players in all regions of the world demand a harmonised regulation of animal welfare and animal protection.

A fourth, pragmatic reason for developing global animal welfare standards is that these can provide a benchmark for local, national, and international legislation. At present, animal welfare or rights activists face the daunting and repetitive task of battling for new laws in multiple, isolated national jurisdictions. An international yardstick would allow them to devote their scarce resources on implementation of that acknowledged standard.Footnote 15

The fifth impetus for global animal law is the need for interpretative guidance. Various international instruments, notably trade agreements, directly or indirectly concern animals. They must be applied and to this end interpreted. New international rules on animal welfare could serve at this point. The pertinent prescription of the Vienna Convention on the Law of Treaties (VCLT) requires that ‘there shall be taken into account (…) any relevant rules of international law applicable in the relations between the parties’ (Art. 31(3)(c) VCLT).Footnote 16 Only international, not domestic, rules could perform this important function as a catalyst for a more animal-friendly reading of existing international trade agreements.

These observations, taken alone, justify a global law approach to animal welfare. The need for such an approach becomes dramatic when we consider the most important features of globalisation, namely capital and labour mobility and global supply chains in the animal industries, to which we now turn.

3 Global Animal Law as a Response to Outsourcing

One of the most important motivations for Global animal law is the urgent need to close the legal loopholes available to animal-related industries exploiting the opportunity to migrate away from stringent national animal welfare standards. The animal-processing industry (for food and pharmaceuticals) is a global industry and thrives on global trade. Even if one country attempts to improve welfare standards, for example for the caging of livestock, for slaughter, or for animal experiments, it cannot do so unilaterally if it wants to be effective. The reason is that the affected sectors or branches of industry can escape stricter regulations by relocating.Footnote 17 Such relocation, or ‘leakage’, to cheap and low-standard countries then renders high national animal protection standards meaningless. A concrete example for such evasion is the transfer of the slaughter of horses from the United States (US) to Mexico, where welfare standards are much lower. After closure of the last horse slaughter facilities in the US in 2007, exportation of horses for slaughter to Canada and Mexico has increased dramatically (by 660% to Mexico), with unintended negative effects on horses’ welfare, notably during transport.Footnote 18 Another pertinent field is biomedical research. In 2010, an international group of researchers, research funding institutions, and representatives of pharmaceutical and biomedical industries adopted the Basel Declaration,Footnote 19 with the (implicit) objective of persuading regulators and the public to renounce overly strict regulation of biomedical research using animals. The accompanying statements underscored the importance of preserving Switzerland as a site for biomedical research if research regulation became too strict. The organisers at least implicitly raised the danger of outsourcing the industry, which in turn would lead to important losses of tax income for Switzerland. A final example is a statement of the German Research Foundation (Deutsche Forschungsgemeinschaft) that complained about overly bureaucratic procedures for obtaining permits to perform animal experiments in Germany.Footnote 20 Such complaints might have a chilling effect on regulators. Moreover, there is already a trend that researchers seek to evade strict standards through new forms of research collaborations with colleagues in low-standard countries, or fully move to those states.Footnote 21 If regulators bow to such pressures, and when individual countries try to keep or regain economically significant industrial sectors by supplying an attractively permissive legal environment, the further elevation of standards is stalled (frozen), and in the worst case a downward spiral of standards could be set in motion, a race to the bottom, to the detriment of the welfare of animals.Footnote 22

Nation states with a high level of high animal protection, conscious of the global competition among states over mobile industries, face various policy options.Footnote 23 The obvious response might be to lower national standards (resulting in the abovementioned ‘race to the bottom’). An alternative path is to campaign for uniform international rules in order to prevent other states from exploiting their lower or lacking requirements as an (unfair) competitive advantage. Uniform international law can level the playing field for their firms from high-standard states by subjecting all businesses to one and the same (high) norm.Footnote 24 This strategy is employed with regard to animal welfare standards by the EU which has relatively more stringent animal welfare laws than most of its global trading partners. The EU Commission solicited a study on the impact of animal welfare rules on the international competitiveness of agricultural operators outside of the EU. In its 2018 report on that study, the EU Commission stated that ‘[t]he overall objective of the Commission’s international activities on animal welfare is promoting EU values regarding animals, (…) and encourage[ing] globally, particularly with EU-trading partners, high animal welfare standards, reflecting the EU model and principles. Improving animal welfare standards globally also contributes to ensure a level playing field between EU and non-EU operators. (…) to be sustainable, [a legislative model on animal welfare] should also be disseminated internationally’.Footnote 25 In the early years of the WTO, the EU had proposed that the trade organisation should directly address animal welfare standards.Footnote 26 The EU’s motivation is to avert ‘that its animal welfare standards could be undermined and that it could suffer negative trade effects, since agricultural products produced to meet high EU animal welfare standards would run the risk of being edged out of the market by cheaper imports produced under lower standards’.Footnote 27 The proposal for adopting a WTO-wide animal welfare standard thus far has not found favour with WTO members but is maybe anyway moot due to the current paralysis of the WTO.

Since then, at least ten new bilateral and regional “deep” trade agreements foresee the exchange of information, ‘dialogue’, ‘consultation’, and cooperation, collaboration, and/or technical assistance on animal welfare (Annex IV, Art. 12(2)(e) of the Agreement EU—Chile (2002),Footnote 28 Art. 5.1. sec. 2 and Art. 5.9 of the Agreement EU—South Korea (2010),Footnote 29 Art. 62 of the Association Agreement EU—Central American States (2012; trade part provisionally applied since 2013),Footnote 30 Art. 102 of the Agreement EU—Andean states (Colombia, Peru, and Ecuador, potentially Bolivia) (2012),Footnote 31 Sec. 2 of the EU—Brazil Memorandum of Understanding (2013),Footnote 32 Art. 68(4) and Art. 404 of the Association Agreement EU—Ukraine (2014),Footnote 33 Art. 59(4) of the Association Agreement EU—Georgia (2014),Footnote 34 Art. 21(4) lit. s) of CETA (2016),Footnote 35 Art. 35 of the Agreement EU—Philippines (2017),Footnote 36 Art. 18.17 of the Agreement EU—Japan (2017),Footnote 37 Art. 16.3 of the Agreement E—Vietnam (2018)).Footnote 38 In 2018, an agreement of principle on the modernisation of the EU−Mexico Global Agreement was reached which foresees an entire chapter on ‘Cooperation in Animal Welfare and Anti-Microbial Resistance’.Footnote 39 The mentioned cooperation and capacity-building provisions are placed either in an SPS-‘plus’ chapter or in a separate chapter on regulatory cooperation.

To conclude, a downwards spiral of animal welfare and protection standards can be prevented only by the dissemination of adequate standards worldwide, and we have seen that such dissemination strategies are already underway, promoted notably by the EU.

4 Global Animal Law as an Analytical Lens

Global animal law is first of all critical—more deeply critical than classical animal welfare law, animal protection law, and wildlife law. It moves away from merely lamenting the weak legal protection for animals and suggesting reforms. Rather, it starts from the insight that the law is profoundly ambivalent in its approach to animals: it not only serves to protect animals from individual deviant abusive behaviour but also perpetuates institutional violence against animals.Footnote 40

One policy claim of global legal animal studies is that legal rules for the benefit of animals, their status, their welfare and potential rights can be effective only if they are enacted both on the domestic and on the international level. Obviously, the regulatory response must grow from the bottom up. International law-making institutions have no chance of imposing rules on states that do not take sufficient cognizance of animal issues in their own domestic law. A domestic legal basis must form the breeding-ground for international norms and must secure their operation.

A follow-up question is how much in this area can be left to so-called indirect regulation through the invisible hand of the market, and where ‘command-and-control’ regulation is needed. The ‘market-based approach’ is less paternalistic and a good compromise for governments whose citizenship is divided about animal welfare. If only a minority is highly critical of a given animal production method, let them decide for themselves with their purse to avoid participating in these practices as consumers. However, and as a matter of principle, the meeting of offer and demand on a market can bring about appropriate product and production standards only when consumers are comprehensively informed before making their purchasing choices. This is typically lacking in the animal-related industry. This means that the first level of regulation by the states should aim at transparency, consumer information, certification, and labelling. Only on this basis, market-based regulation can function at all. Another drawback of the purely market-based approach is that it favours those who are willing and able to consume over those who are unable or unwilling to consume, or both. Vegetarians cannot vote with their chequebook on animal-friendly meat production. Also, such ‘regulation’ is less effective because it is less complete; a more or less large residual market for the unwanted animal product will almost always persist. In result, animal welfare and protective regulation will need a combination of state made and non-state rules.

Finally, global animal legal scholars actively embrace the new approaches in ethics, political theory, and social anthropology that have generated the fields of human—animal studies (HAS),Footnote 41 animal politics,Footnote 42 and critical animal theoryFootnote 43—trends celebrated as constituting an ‘animal turn’Footnote 44 in the social sciences and humanities.

In conclusion, global animal law functions as an umbrella term that allows us to grasp the complex nature and characteristics of the pertinent legal issues better, and thus to better analyse, criticise, and advance the legal regimes governing animals globally. Each chapter of this book seeks to make a distinct contribution to this end.

5 The Contributions to this Volume

The contributions delve into the history of the ius gentium, examine various aspects of how national and international law traditionally deals with animals as commodity, and finally suggest new legal concepts and protective strategies.

Part One lays historical foundations. Two chapters, written by historians, demonstrate that scholars of the ius naturae et gentium from the sixteenth to the seventeenth centuries contemplated whether and how to include animals in the sphere of politics and justice. The ius naturae was premised on an idea of human nature, and this idea was developed partly in contradistinction to animal nature.

Annabel Brett (Chap. 2) shows that animals were not totally excluded from any kind of right and that violence against them was not always regarded as legitimate. In Chap. 3, Anna Becker traces how early modern writers of political theory, often in their comments on Aristotle, viewed the relationships between some animals and humans, notably in the household.

In Chap. 4, Mathilde Cohen examines ‘animal colonialism’. European conquerors and settlers exported the technique of dairy production to all parts of the world. By propagating and spreading animal milk consumption and depreciating colonised women’s practice of breastfeeding, the oppression of humans and animals went hand in hand.

Part Two deals with animals as commodity. Chapter 5 by Kristen Stilt examines the trade of live animals for slaughter, focusing on export from Australia to the Muslim-majority countries that are the main customers. The current legal regime governing live exports is insufficient to provide animals with an adequate standard of welfare. But with the due involvement of religious authorities, the Islamic tradition of animal welfare could be harnessed to develop more widely accepted international transportation and slaughtering standards.

Chapter 6 by Stefan Kirchner discusses animal use by indigenous peoples that involve crossing state borders, using the example of reindeer herding by Sámi in Sweden, Norway, and Finland. Animals play important cultural, economic, and spiritual roles for indigenous communities which are not sufficiently recognised by contemporary laws. The risk of overruling the interests of migratory animals and of the pastoralist (semi-)nomadic human communities depending on them, is exacerbated when the herds cross boundaries.

Chapter 7 by Jiwen Chang gives an account of China’s new legal framework (particularly the Wild Animal Protection Law of 2016). Chang suggests several concrete measures for improvement, including the introduction of public interest litigation, better coordination among governmental departments, a trading information platform, and consultation with the secretariat of the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES), in order to bring the Chinese legal and administrative framework fully in line with CITES.

In Chap. 8, Radha Ivory sketches how the international topics of corruption and endangered animal trafficking have been connected in hard and soft international law, including by United Nations Security Council resolutions. Ivory cautions against linking the two legal frameworks and reform agendas, inter alia because the combined anti-corruption/wildlife trafficking discourse may distract from the vigilance against illicit investment and excessive consumption in the Global North, which enable and drive the crimes.

Part Three introduces new legal concepts. In Chap. 9, Guillaume Futhazar explores the place of the concept of animal welfare in biodiversity and species protection agreements. He suggests that new international rules aiming at ensuring the protection of wild animals’ welfare could fulfil a double purpose: strengthening conservation and filling the welfare gap of international biodiversity law.

In Chap. 10, Anne Peters argues that animal rights could and should be recognised by international law. Animal rights would complement human rights not the least because the entrenchment of the species-hierarchy as manifest in the denial of animal rights in the extreme case condones disrespect for the rights of humans themselves.

In Chap. 11, Saskia Stucki examines the labelling of animal products as ‘humane’ and likens the idea of humanising animal slaughter, factory farms, and other forms of production to the notion of humanising warfare. Like international humanitarian law, animal welfare law is marked by the tension inherent in its attempt to humanise innately inhumane practices. Both areas of law endorse a principle of ‘humanity’ while arguably facilitating and legitimising the use of violence, and might thereby ultimately perpetuate the suffering of living beings.

Part Four explores new protective legal strategies. In Chap. 12, Charlotte Blattner examines how extraterritorial jurisdiction can help to overcome regulatory gaps in animal law, much as criminal law or antitrust law successfully responded to global problems through laws that reach across borders. Because the emergence of an international treaty regulating animal abuse is currently unlikely, extraterritorial animal law, if applied reasonably, could fundamentally improve the protection of animals, both those located at home and abroad.

In Chap. 13, Tom Sparks discusses the potential of a human rights framework to contribute to the growth and development of global animal law, taking as example the jurisprudence of the European Court of Human Rights. Sparks concludes that although the telos of human rights law is different from that of animal law, nevertheless there exist many overlapping concerns within which mutually beneficial interactions are possible.

Chapter 14 by Jérôme de Hemptinne turns to the treatment of animals in international humanitarian law (IHL). IHL does not contain explicit rules to mitigate the suffering of animals in armed conflict. However, the overall evolution of law’s approach to animals, notably its recognition of them as sentient beings, appears to allow for a progressive interpretation of IHL so as to constrain acts of violence against animals in war.

As this book demonstrates, legal scholars concerned with animal issues are developing proposals to fill gaps in international law, are reformulating traditional legal concepts such as rights, jurisdiction, or civilians, and are reconfiguring the domestic law–international law divide. By showing numerous entry points for animal issues in international law and at the same time shifting the focus and scope of inquiry, the book seeks to push forward the field of global animal law and global legal animal studies as a scholarly discipline.