1 Introduction

In a recent study, researchers from the Weizmann Institute of Science and the California Institute of Technology estimated that humans represent, in terms of mass, only 0.01% of all life.Footnote 1 Yet, despite this low ‘weight’, our collective impact on the biosphere is so significant that we may very well have triggered the sixth mass extinction.Footnote 2 This study adds to an already long list of demonstrations as to our impact on all living things,Footnote 3 and once more calls for a collective reflection on how to mitigate the inexorable human-caused erosion of the earth’s biodiversity. Our influence on the environment also raises serious concerns for the living conditions of the remaining surviving life forms that are subject to considerable and sustained pressure.Footnote 4 In this context, it becomes essential to examine not only what has been done to cope with this alarming erosion of life but also to deal with the toll we are inflicting on the living organisms that remain.

This chapter aims to explore the influence of the concept of animal welfare in international biodiversity law. To do so, it is necessary, as a preliminary clarification, to define these two terms and illustrate how they relate (Sect. 2). From there, this chapter will highlight the ambivalent place of animal welfare in biodiversity related regimes. Indeed, while the concept of animal welfare is practically invisible in the context of treaties dealing with biodiversity as a whole (Sect. 3), it appears that welfare is gradually becoming a sine qua non condition for conservation and sustainable use in the context of international agreements dealing with endangered species (Sect. 4). Based on this analysis, the last section will highlight the relevance of enacting specific international rules to ensure the welfare of wildlife (Sect. 5). Even though these rules might have a distinct purpose from international biodiversity law, they could nevertheless complement it in achieving conservation and sustainable development.

2 The Scope of Animal Welfare and International Biodiversity Law: Wildlife as an Overlapping Theme

The concept of animal welfare generally refers to the living and dying conditions of animals in the context of their different relations with humans. Animal welfare calls for the avoidance of unnecessary suffering and can consequently be understood as the condition in which an animal is free from hunger, malnutrition and thirst; free from fear and distress; free from physical and thermal discomfort; free from pain, injury and disease; and free to express normal patterns of behaviour.Footnote 5 Furthermore, animal welfare is related to three overlapping dimensions: the animal’s basic health and functioning; its affective state; and its natural way of living.Footnote 6 Importantly, it has to be stressed that the concept of welfare makes sense only in the context of human–animal relations.Footnote 7 Indeed, an animal in its natural and undisturbed conditions may very well be subjected to events that violate its ‘freedoms’, such as predation or starvation. The concept of animal welfare does not suggest that such situations should be prevented but rather dictates that humans should not create conditions that negate the aforementioned freedoms.Footnote 8

The influence of the idea of avoiding inflicting unnecessary suffering on animals has grown over the past decades. The increase in academic writing on the subject has been dubbed ‘the animal turn’Footnote 9 and has fuelled numerous public debates on the subject.Footnote 10 Concurrently, states and international organisations have enacted laws and standards aimed at ensuring animal welfare in various settings (domestic animals, agriculture, and scientific experimentation…).Footnote 11 Yet, most of these laws and standards concern captive animals, and the welfare of wildlife has been largely ignored.Footnote 12 Considering this legal gap at the national and regional levels, the provisions regarding wildlife welfare have to be sought elsewhere and international biodiversity law seems, at first glance, to be suited for this purpose.

International biodiversity law can be understood as the corpus of international rules that aim to ensure the conservation and sustainable use of biodiversity. According to the Convention on Biological Diversity (CBD),Footnote 13 biodiversity refers to:

the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.Footnote 14

Biodiversity is an encompassing concept and consequently this branch of international environmental law can take many forms, from agreements dealing with biodiversity as a wholeFootnote 15 to treaties aiming at preserving a specific ecosystem at the global or regional levelFootnote 16 or specialised conventions with the purpose of preserving certain endangered species.Footnote 17 These latter specialised conventions—which together are sometimes referred to as ‘international wildlife law’Footnote 18—stress that species are integral components of the ecosystems in which they live. Their conservation and sustainable use are therefore a prerequisite for the preservation of biodiversity as a whole. Furthermore, several studies have shown that the welfare of the individuals that make up a species is an important aspect for the conservation of the population as a whole.Footnote 19 Accordingly, it is possible to infer that animal welfare is taken into account in international biodiversity law since it contributes to the health of species as a whole.

However, as the following sections will show, the place of animal welfare in international biodiversity law is ambiguous. In international agreements dealing with biodiversity in general, animal welfare appears to be a very minor consideration, while in the context of international conventions dealing specifically with the issue of endangered species, animal welfare is gradually becoming an essential element for conservation and sustainable use.

3 Animal Welfare: An Absent Topic in General International Biodiversity Law

The most emblematic biodiversity-related international agreement is arguably the Convention on Biological Diversity (CBD).Footnote 20 Despite being weakly normative,Footnote 21 this agreement has had a major impact on the general development of international biodiversity law.Footnote 22 Several conservation principles that were developed within its institutions were subsequently adopted by the members of other multilateral environmental agreements (for instance, the ecosystem approachFootnote 23 or the Addis Ababa principles on sustainable use of biodiversityFootnote 24), and its current strategic plan and ‘Aichi Targets’Footnote 25 have become a major reference point for the implementation of the ‘biodiversity cluster’.Footnote 26 Still, the question of animal welfare is never once addressed in the provisions of the CBD and is, at best, an incidental concern in the corpus of decisions taken by its parties in order to support its implementation.

It can also be said that the heavily anthropocentric and holistic approach that is inherent to the CBD prevents animal welfare considerations to be included in its scope. The development of the ecosystem approach principle is particularly illustrative of this bias.Footnote 27 The ecosystem approach calls for appropriate consideration of the entirety of each ecosystem (constituents and processes) in order to ensure that human society benefits from healthy ecosystems.Footnote 28 Though this principle does not directly go against the concept of animal welfare, its strong emphasis on human benefitsFootnote 29 and its holistic approach is illustrative of the opposition that exists between environmental ethics (anthropocentric and holistic) and animal ethics (zoocentric and individualist).Footnote 30

Despite this overarching holistic approach to conservation, the decisions of the members of the CBD are not entirely devoid of animal welfare considerations. For instance, art. 8.h of the convention calls for the prevention of the introduction of invasive species and, in cases where this prevention fails, their control or eradication.Footnote 31 To implement this article, the parties and institutions of the CBD have developed a series of guidelines that state on several occasions that the eradication of invasive species has to be done in an ‘ethically acceptable’ way.Footnote 32 Of course this mention of ethics is vague but it does offer an entry point for considerations of animal welfare as the topic gains importance at the international level and in national contexts.Footnote 33

Interestingly, the provisions and developments of the CBB concerning the conservation of biodiversity are mirrored in other agreements, be they on specific conservation issues (for instance wetlandsFootnote 34) or on specific regions (the MediterraneanFootnote 35 or the Alps,Footnote 36 for instance). Consequently, as far as agreements concerning biodiversity as a whole are concerned, it is clear that animal welfare is not the main consideration for states or institutions, who are committed instead to a holistic approach for conservation and sustainable use.Footnote 37

Recent developments in other international fora tend to reinforce this assessment. For instance, resolution 72/223 of the United Nations General Assembly on Harmony with Nature clearly highlights the ecosystemic and holistic approach of the UN with regards to the environment.Footnote 38 It can also be said that the recent decision of the ICJ in the Certain Activities carried out by Nicaragua in the Border Area case strengthens the legal paradigm of a holistic approach for the conservation of biodiversity.Footnote 39 In this historic decision in which the ICJ granted compensation for environmental damage for the first time,Footnote 40 the Court decided to evaluate the damage caused to the environment by considering the affected ecosystem in its entirety.Footnote 41 When doing so it referred to several concepts: in particular, to the concept of ecosystem services.Footnote 42 Ecosystem services refer to the direct and indirect contributions of ecosystems to human well-being. These contributions can be attributed a value in order to determine the economic importance of ecosystems.Footnote 43 In this case, by referring to this concept, the ICJ stressed once more the anthropocentric and ecosystemic aspect of international biodiversity law. The recognition of this paradigm for the valuation of biodiversity by the judicial organ of the United Nations is telling of how little the question of animal welfare seems to bear on the evolution of this branch of international law.

However, if animal welfare is but a faint consideration in general international biodiversity law, the diagnosis is quite the opposite when examining agreements concerned with endangered species.

4 Animal Welfare: A Condition for the Sustainable Use and Conservation of Endangered Species

Historically, international environmental law has developed through the adoption of treaties dealing with the conservation and sustainable use of specific species. These treaties had different raisons d’être, from the preservation of purely commercial interestsFootnote 44 to the conservation of species that were deemed useful.Footnote 45 As the decades passed, and with the development of scientific knowledge on the global state of the environment and the conservation status of species, several other specific treaties were adopted in order to prevent extinctions. The instruments adopted during the second half of the twentieth century no longer only dealt with specific species but also with practices such as international trade or with broader categories, such as migratory species. Yet, with the exception of the well-known example of the CITES,Footnote 46 these different instruments make no mention of the concept of welfare, be it directly or indirectly, in their provisions. For instance, the GORILLA Agreement,Footnote 47 adopted within the context of the Convention on Migratory Species, calls for the maintenance of gorillas ‘in a favourable conservation status’.Footnote 48 The same goes for the Agreement on the Conservation of Polar Bears,Footnote 49 which states that its parties ‘shall manage the bear population in accordance with sound conservation practice’.Footnote 50 Other treaties generally prohibit the killing of individual members of certain speciesFootnote 51 but do not provide any other indication on how to ensure that the same individuals are not subjected to unnecessary suffering due to restrictions to their animal freedoms by human activities.

At first glance, it appears that the welfare of individual members of those specific species concerned by these numerous instruments is not considered essential for their conservation. However, most international environmental treaties have an evolutive purpose by designFootnote 52 and their main provisions are often followed by decisions and guidelinesFootnote 53 that allow for an updated implementation in order to achieve greater effectiveness. This process of legal densificationFootnote 54 of the primary obligations of states with regard to the conservation of certain species has paved the way for considerations of welfare. For instance, with regards to the conservation of cetaceans, the influence of welfare on the obligations of states is increasingly clear. This is most notable in the context of the International Whaling Commission, where its members have adopted several decisions aiming at ensuring the welfare of cetaceans falling under the scope of the commission.Footnote 55 Moreover, several decisions taken in other international fora encourage states to take into consideration the cultures of whale populations in their conservation effort.Footnote 56 Similar developments focusing on welfare can be seen in the context of other species-related treaties. The parties to the EUROBATS agreementsFootnote 57 have adopted decisions specifying how injured individual bats should be taken care of before being released into the wild.Footnote 58 In the context of the Agreement on the Conservation of Albatrosses and Petrels (ACAP),Footnote 59 several technical guidelines, which can be used as interpretive tools for the general provisions of the agreement,Footnote 60 were produced to ensure the welfare of individuals (e.g. the guidelines on translocation).Footnote 61

Witnessing the evolution of international treaties dealing with the conservation and sustainable use of specific species, one gains the impression that the welfare of individuals is gradually becoming a prerequisite for the conservation of species as a whole. As the knowledge of species and the pressures they endure grows, it is apparent that ensuring their conservation cannot simply be confined to the strict application of the main provisions of international agreements. Not killing, or killing within commonly agreed limits (for instance, on the basis of quotas), is insufficient on its own to preserve the specie, and so is ‘simply’ preserving habitats. Active steps must be taken by the parties to these international instruments in order to guarantee collective welfare and thus effectively achieve conservation and sustainable use.

However, there are two limits to this diagnosis that seem to equate animal welfare and international biodiversity law. Firstly, the provisions concerning welfare are mostly contained in secondary rules or technical guidelines. As such, they are not binding. This leaves considerable leeway to the states in enforcing them. Secondly—and this is the greatest limitation—even though the influence of animal welfare in the evolution of these specific instruments is clear, they only concern a very small proportion of wildlife, namely species that have been recognised as endangered and that are the object of international rules. Solely based on these agreements, it would be a gross overstatement to claim that the welfare of wildlife is guaranteed by international biodiversity law.

Hence, it can be said that international biodiversity law, in its general and specific aspects, does not constitute an appropriate tool to ensure the welfare of wildlife in its entirety. International biodiversity law concerns itself with animal welfare only when it deals with the conservation and sustainable use of specific species or the regulation of certain practices, as welfare becomes a condition for the achievement of its purpose.Footnote 62 Consequently, this welfare gap in international biodiversity law means that specific rules would have to be enacted in order for the welfare of wildlife to be protected at the international level. The following section will show that such rules, though they may have a purpose that is distinct from conservation or sustainable use, could complement international biodiversity law.

5 The Relevance of Complementary International Rules to Ensure Both Wildlife Welfare and Conservation

It is important to stress that while welfare and conservation do not have the same ethical basis (individualist versus collective) they might lead to similar practices and end results.Footnote 63 This section will examine whether a specific set of rules concerning animal welfare at the global level could fill the gaps in international biodiversity law and complement its existing dispositions.

Several authors have called for the adoption of international instruments and/or rules specifically designed to ensure the protection of animals as individuals.Footnote 64 In doing so, they argue that the lack of rules that could guarantee the welfare of wildlife is morally unsatisfactory with regard to the unnecessary suffering that human activities cause to individual animals, both captive and wild.Footnote 65 For instance, in an article published in 2012, David Favre argued in favour of the adoption of a framework convention that would establish common principles regarding the welfare of animals at the international level.Footnote 66 Such a convention would contain articles calling for a reduction of the killing and unnecessary suffering of wildlife, as well as the preservation of habitats.

In addition to the ethical arguments, it is also relevant to underline the fact that welfare considerations can be useful for the conservation of populations, thus setting the plea for the welfare of wildlife in the context of environmental ethics.Footnote 67 For instance, several studies have demonstrated how high stress levels in individuals can affect the overall population. This factor can influence the success rates of species reintroduction practicesFootnote 68 or aggravate the spread of diseases within a population.Footnote 69 At the international level, the ongoing effort to mitigate the adverse impact of anthropogenic noise on cetaceans is a clear illustration that welfare and conservation can be intertwined.Footnote 70

This goes to show that enacting international rules for the welfare of animals, and ipso facto wildlife, could serve the double purpose of filling the ethical gap with regard to the impact of human activities on animals and strengthening existing conservation regimes. Rules concerned with animals as individuals can complement rules concerned with animals as species.Footnote 71 The last question then is to determine what form such rules would take.Footnote 72

As mentioned earlier, several authors have called for an international treaty that would exclusively deal with the question of welfare and animal rights.Footnote 73 An alternative to a stand-alone treaty would be to insert elements of welfare into existing or future environmental agreements. For instance, the UNGA has recently adopted a resolution launching a process that could eventually lead to the adoption of a Global Environment Pact.Footnote 74 Such a pact could possibly call for the due consideration of animal welfare in environmental conservation, especially considering the fact that a growing number of states have enacted laws with regard to the protection of animal wellbeing.Footnote 75 For instance, an additional line calling for the prevention of unnecessary suffering could be added to the current art. 2 (duty to take care of the environment) which states that:

Every State or international institution, every person, natural or legal, public or private, has the duty to take care of the environment. To this end, everyone contributes at their own levels to the conservation, protection and restoration of the integrity of the Earth’s ecosystem.Footnote 76

Consideration for animal welfare could also be added to the normative corpus of existing regimes. For instance, the CBD’s Aichi Targets will be renewed in 2020.Footnote 77 Putting consideration of animal welfare into the renewed targets could ensure that all biodiversity related conventions are implemented not only to ensure conservation but also welfare. Indeed, these Targets have been widely adopted by other multilateral environmental agreements and now constitute commonly shared goals.Footnote 78 One can expect the next set of targets to also be included in the normative framework of other biodiversity-related regimes.

These are, of course, optimistic suggestions. Regrettably, international environmental law is largely ineffective, and adding considerations of animal welfare to it would not necessarily lead to an improvement. However, it would constitute a first step that could complement existing national and regional initiatives and encourage states to consider wildlife in their existing animal welfare laws. The most difficult questions lie in the necessary actions that need to be taken in order to move from ideas to concrete and effective realisations.