PROTECTION OF ANIMALS THROUGH HUMAN RIGHTS The Case-Law of the European Court of Human Rights

The chapter discusses the potential of a human rights framework to contribute to the growth and development of global animal law. It takes as example the jurisprudence of the European Court of Human Rights, and examine the major trends in the Court’s judgments and admissibility decisions that directly or indirectly concern the rights or welfare of animals. It is concluded that the Court is not indifferent to the welfare of animals, but that animal welfare is instrumentalised: it is understood not as a good in itself, but is instead valued for its implications for human welfare and rights. The chapter then considers the obstacles that the anthropocentrism of the human rights idea and the instrumentalisation of animal concerns present to the use of human rights frameworks to further the development of global animal law, as well as the opportunities that exist in the meeting of these paradigms. It 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.

will be divided thematically (sections one and two). 2 Section three will then consider the current legal and conceptual barriers to more effective animal protection under the Convention, and will make some tentative remarks on the potential of the ECHR and its Court (as well as human rights frameworks more broadly) to contribute to the development of global standards on animal welfare.

The Hunting Cases
In 1998, the first hunting case came before the Court. Steel and Others concerned a series of individuals arrested for the English common law offence of breach of the peace for acts of protest, and who had been subject to binding over orders. 3 The protest in the case of the first applicant was the disruption of a grouse shooting party and, following her refusal to accept a binding over order, she was jailed for 28 days. 4 The Court examined the complaint under the article 5 prohibition on arbitrary deprivation of liberty and as an interference with the applicant's right to free expression (article 10). In finding no violation, it noted that Ms Steel had been subjected to 'serious interferences with the exercise of her right to freedom of expression', 5 but balanced this against the 'obstruction' of the 'lawful pastime' of the hunting party and the 'risk of disorder' arising therefrom, 6 as well as the 'importance in a democratic society of maintaining the rule of law and the authority of the judiciary'. 7 It therefore held that her arrest and detention were not disproportionate interferences with her convention rights. 8 However, in subsequent cases, the Court has asserted that a moral conviction against hunting is capable of attracting Convention protection, 9 that animal welfare is a matter of public interest, 10 and that no Convention protection of the right to hunt exists. 11 Nevertheless, it remains a mixed practice.

Protection of Animals in the Case Law of the ECtHR
Tom Sparks

Hunting under Article 1 of Protocol 1
The 1999 case of Chassagnou v. France concerned ten applicants, each of whom owned land in areas regulated by the Loi Verdeille. Under that law, all landowners whose holdings are below a certain threshold are required to pool their lands for the purposes of creating an area within which members of the relevant municipal hunting association (ACCA) may freely hunt. The landowners whose property forms a part of the hunting area are automatically members of the local ACCA. 12 The applicants in the case were all ethically opposed to hunting, and made unsuccessful applications to have their properties removed from the hunting areas, and themselves released from membership of the ACCAs. 13 The Court found violations of article 11 (freedom of association) and article 1 of Protocol 1 (protection of property) taken separately, and also found violations of each of these provisions when read in conjunction with the protection from discrimination in the application of the convention (article 14).
The Court accepted that the imposition of ACCA membership and the requirement to permit hunting on the applicants' land pursued a legitimate aim (it commented that 'it is undoubtedly in the general interest to avoid unregulated hunting and encourage the rational management of game stocks'). 14 Nevertheless, it recognised that the applicants' ethical objections were relevant to the assessment of the proportionality of the interference. In relation to article 1 of Protocol 1 it noted that the Government's characterisation of membership of the ACCA as "compensation" for the loss of the exclusive right to hunt (or, as the case may be, to choose not to hunt) over one's land 'is valuable only in so far as all the landowners concerned are hunters or accept hunting.' 15  As the line of cases culminating in Chabauty shows, this is no reification of the right to property. On the contrary, the Court has been inclined to give the state a wide margin of appreciation to regulate hunting. 21 Nevertheless, ethical objections to hunting are sufficient significantly to narrow the margin of appreciation, and the Court has consistently held that national regulation of hunting must make provision for the rights of opponents of hunting to use their land in ways that accord with their beliefs. Though this is only a small step towards Convention support for animal concerns, it is nevertheless noteworthy both as a protection for animal rights activists, and because it recognises opposition to hunting (and perhaps by implication concern for animals more broadly) as a politico-moral opinion capable of attracting ECHR protection.

Hunting under Articles 10 and 11
Articles 10 and 11 have been invoked alongside the right to property as further grounds to find the obligation to accept hunting interferes with the Convention rights of conscientious objectors, 22 but have also twice been invoked in the separate context of anti-hunting protest. 23 Here the Court has seemed more reluctant to grant protection: in neither case were the restrictions of the applicants' acts of protest in defence of animal rights considered to be violations of the Convention.
Articles 10 and 11 were first invoked by an anti-hunting protester in Steel and Others v. UK. 24 The first applicant claimed violations of articles 10 and 11 of the Convention, but only article 10 was considered, 25 and no violation was found. 26 The Court emphasised that the applicant's protest-which involved placing herself in front of the hunters to prevent them from firing-'created a danger of serious physical injury to herself and others' and 'risked culminating in disorder and violence. Protection of Animals in the Case Law of the ECtHR Tom Sparks appears, therefore, to be the applicant's direct action which justified her arrest and imprisonment, a conclusion reinforced by Geert Drieman and Others v. Norway. Here the applicants were arrested and held on remand for actions taken to disrupt a whale hunt in Norway's exclusive economic zone. 28 The applicants claimed that their arrest and detention violated articles 10 and 11 of the Convention, and the Court accepted that these actions amounted to an interference. Nevertheless, it decided that the application was manifestly ill founded under Article 35(3) of the Convention, and therefore inadmissible. 29 The decision that the complaint in Drieman was manifestly ill founded and not worthy of further consideration is somewhat surprising, and seems to indicate a hostility to direct action as a form of protest. Though it was accepted by the Court that there had been an interference with articles 10 and 11, it considered it sufficiently obvious that the state's actions were proportionate that a more detailed assessment was manifestly unnecessary. Its reasoning supports two possible (non-exclusive) interpretations: that the applicants' aims did not require protection in a democratic society; or that their methods were sufficiently outrageous that states cannot be expected to tolerate such conduct in defence of the right to protest. The first, it seems, played a role. The Court noted that the interference pursued the legitimate aim of 'enforc[ing …] the rules protecting whaling', 30 and counterbalanced that remark with a finding that the protest 'forc[ed] the whalers to abandon their lawful activity'. 31 It noted, too, that the relevant conduct 'could not enjoy the same privileged protection under the Convention as political speech or debate on questions of public interests or the peaceful demonstration of opinions on such matters'. 32 Although this latter comment is more closely tied to the question of methods, taken together these statements indicate the Court's opinion that the subject of the protest did not attract a high standard of protection. 33 On the contrary, the Court privileged the economic activity of the whalers over the protest of the animal rights activists. 34 In its assessment of the methods, too, the Court seemed ill-disposed to the direct action of the protestors. 35 The comment above contrasting the protestors' actions with 'peaceful demonstration of 28 33 The Court has implied in a series of cases that there is a hierarchy within articles 10 and 11, wherein certain subjects (those that are "political" or in the "public interest") will receive a higher level of protection than others. opinions' on questions of public interest should be read alongside the characterisation of those actions as 'a form of coercion', and 'an ultimatum'. 36 Yet unlike in Steel and Others there was no suggestion that the applicants' protests had created a danger to the whalers or to any other person; 37 unlike in Kudrevičius and Others the disruption caused to 'activities lawfully carried out by others' did not affect a large number of people, but instead only a small group; 38 and unlike in Taranenko v. Russia the protests did not result in violence. 39 Nevertheless, the Court in Drieman directly contrasted its approach in cases involving 'the peaceful demonstration of opinions on [matters of public interest]' (in which a narrow margin of appreciation is appropriate) with the facts before it, where it found that '[c]ontracting States must be allowed a wide margin of appreciation in their assessment of the necessity of taking measures to restrict such conduct.' 40

Animal Welfare and Freedom of Speech
Claims under article 10 in the context of hunting have come in parallel to article 11, in cases concerning protest. There, the articles were considered to raise the same issues. 41 Freedom of speech has also been invoked separately from the freedom of association, however; both in relation to reporting on hunting, 42 and publications by animal rights groups. 43 The first animal welfare case to raise article 10 outwith the context of protest was Bladet Tromsø and Stensaas v. Norway. The case was brought by the Bladet Tromsø newspaper and its editor, following a successful defamation suit against them for articles which reported allegations by a seal hunt inspector of cruel and illegal practices. 44 Defamation proceedings were brought by the hunters concerned on Public Law and Human Rights (4 th ed., Abingdon: Routledge 2017), 999. However, the Court has tended to apply a very wide margin of appreciation in such cases, characterising direct action as 'reprehensible', and implying that it cannot be considered wholly 'peaceful' even when no violent action is taken:

Protection of Animals in the Case Law of the ECtHR Tom Sparks
sequentially against the inspector, Bladet Tromsø and its editor, and (unsuccessfully) against several other media outlets. The Court began its assessment with its familiar assertion of the high importance of the press, and declared that '[i]n cases such as the present one the national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of "public watchdog" in imparting information of serious public concern'. 45 It held too that 'in order to determine whether the interference was based on sufficient reasons which rendered it "necessary", regard must be had to the public-interest aspect of the case.' 46 This it found to be high, referring to the 'legitimate public concern' with the subject matter, 47 and noting that it was in actuality 'of evident concern to the local, national and international public'. 48 The Court's strong declaration that animal welfare and the exposure of cruelty to animals is a legitimate matter of public interest is, in the author's opinion, more significant than the ultimate finding that article 10 had been violated in the circumstances of the case. 49 The Court has been loath to hold that restrictions on journalistic speech on matters of public interest can be justified except under circumstances of clear abuse, and has repeatedly held that the state's margin of appreciation will be very narrow where the freedom of the press is concerned. 50 That article 10 was violated was an unsurprising conclusion, therefore, once the finding had been made that a debate on animal cruelty was a matter of public interest: it was the combination of public interest and journalistic speech which was important for the outcome. The same can be said of the subsequent article 10 cases concerning aspects of animal welfare that have come before the Court: for present purposes the ultimate decisions are of secondary importance, being determined primarily by factors not directly relevant to animal welfare. That is significant in itself, however, insofar as it demonstrates that the role given to animal welfare concerns in article 10 cases is a narrow one, limited to determination of the appropriate standard of review.
In the years following Bladet Tromsø and Stensaas the Court has ruled on the application of article 10 in relation to animal welfare in six cases, each of which concerned the legality of restrictions on communications by animal welfare groups either ( 52 In each case the Court reiterated its finding that animal welfare and animal rights are 'topics of general concern', 53 and 'questions of public interest'. 54 Accordingly, it has repeatedly noted that the margin of appreciation due to states in determining to what extent such communications can be restricted is narrow, 55 and has even gone so far as to suggest that the standard of protection appropriate to campaigning groups working on such matters is similar (although perhaps not identical) to that applicable to journalists. 56

Obstacles and Opportunities
Nevertheless, it is abundantly clear from the Courts' reasoning in these and other cases that what is protected is the interest that humans may feel in the welfare and suffering of animals, and not the welfare of animals as an end in itself. The distinction is illustrated particularly clearly in PETA Deutschland v. Germany. That case concerned an advertising campaign which juxtaposed images of mass farming methods with Nazi-era concentration camps, together with text which claimed similarities between the treatment of holocaust victims and treatment of animals in the modern meat industry. Though these statements were seemingly too strongly put for the majority of the Court, the underlying reasoning appears to be the same. Certainly, Judge Zupančič is correct in pointing out that using the picture of the concentration camp victims simply as a comparator does not accord with the Kantian imperative that individuals be treated as ends in themselves, but it is worth pausing to consider whether a comparison of holocaust victims with-for example-victims of modern-day international crimes would have attracted the same condemnation. That would be no less of an instrumentalisation, but it seems clear that for Judges Zupančič and Spielmann (even if not for the domestic courts) the context of the comparison was a significant part of the harm the campaign committed. It may be that it was not instrumentalisation per se that was objectionable, but rather instrumentalisation of the human in service of the animal.
Nor is that conclusion-or its counterpart that the animal may be instrumentalised in service of the human-a surprising position for the Court to reach. It is almost unnecessary to say, for example, that the Court has no objection in principle to the use of animals as game, 65  religious practice. 68 Given a direct conflict between animal life and human safety and wellbeing the Court unsurprisingly privileges human safety. 69 The Court should not be criticised for these positions: to adopt the contrary finding on any of these points would take the Court radically beyond the understanding of the rights involved prevalent in the Council of Europe states, and thus well beyond its remit to 'interpret[ the Convention] in the light of present-day conditions and of the ideas prevailing in democratic States'. 70 The Court generally cites Tyrer v. UK as the source of this principle, which casts the Convention as a 'living instrument'. 71 Although this means that standards of protection may develop, 72 the Court has also explicitly arrived at the corollary conclusion that it should not go beyond these evolving standards. 73 It is therefore not at liberty to find that hunting, eating or experimenting on animals is improper even if it were inclined to do so: every Council of Europe state accepts these practices within certain limits, and nor is there a consensus even among animal activists and scholars on their (im)propriety. 74 Although the obligation-both precedential and of prudence-not to stray beyond the understanding of the Convention rights among the states forecloses certain radical steps in using the ECHR to protect animal welfare, the "living instrument" formulation also offers the promise that future developments may be incorporated into the Convention's protections. Judge Pinto de Albuquerque's separate opinion in Hermann v. Germany in 2012 gives an indication of the mechanism through which this could take place. 75  He argues that the Court should reject both the 'commodification' of animals and extensive conceptions of human-like animal personality, instead embracing a 'qualified speciesism which builds upon a responsible anthropocentrism.' 80 He concludes that recognising the moral differences between humans and animals 'does not prevent us from acknowledging the […] existence of basic comparable interests between humans and other animals and therefore the need to safeguard certain "animal rights", metaphorically speaking, in a similar way to human rights.' 81 The mechanism through which this should be achieved is not the grant of legal personality to animals to raise claims before the Court (nor upon human "representatives" to do so), 82 but rather through the obligation of states to realise the human right to a healthy environment. 83 While there is much here that is attractive, there remain both problems with the application of the approach Pinto de Albuquerque proposes, and flaws in the approach itself. To begin with application, it is increasingly accepted that a healthy environment is an aspect of human rights. 84 As yet, however, it is unclear whether the ECHR has the potential adequately to integrate this idea into its provisions. Prima facie environmental harms are more closely connected to the protection of social and economic rights than the primarily civil and political rights of the ECHR. The disconnect is clear in Kyrtatos v. Greece, in which the Court was asked to decide that the illegal destruction of a wetland habitat next to the applicants' house was a violation of article 8. The Court chose not to do so, holding that the applicants had not demonstrated that the effect of the environmental degradation on them 'directly affect[ed] their own rights under Article 8'. 85 The Court reached that conclusion by six votes to one, with Judge Zagrebelsky the only dissenter. It can be speculated then, that although it would be possible for environmental degradation to have sufficiently negative effects to amount to a breach of article 8, such a finding is likely to be made only where there is a measureable negative effect on individuals' health or some other equally weighty aspect of their lives. environment will have to produce very substantial negative impacts on individuals before it will be possible to assimilate these harms under article 8. 87 Yet there are potential problems, too, with the idea of responsible anthropocentricism as a theoretical lens through which to interpret the ECHR in ways conducive to the protection of animal welfare, in that it remains-obviously-anthropocentric. 88 Of course, one could hardly expect the ECtHR to move to a position beyond "responsible anthropocentricism" without alteration of the Convention or a substantial leap in its interpretation. Such an interpretive move would, in theory, be possible: indeed, there is nothing in the text of the convention that would prevent it from being extended to apply to (some) animals. Despite its title (Convention for the Protection of Human Rights; Convention de sauvegarde des droits de l'homme), the personal scope of the Convention as defined by its first article does not refer to "humans" but rather to "everyone" and "toute personne", both terms which seem amenable to a legal rather than scientific definition. Nevertheless, it remains to be seen whether the Court is able to go this far, 89 and that uncertainty serves to make the anthropocentrism problem and its 87 Jurisdiction ratione personae, clearly, will be an obstacle to cases of this kind being heard before the ECtHR. This may be contrasted to the now-famous Orangutána Sandra decision before the courts of Argentina, in which it was decided animals may be the subject of rights: Based on a dynamic rather than a static legal interpretation, it is necessary to accord the animal the status of a rights-holder. Non-human subjects (animals) are bearers of rights, and therefore their protection is required within the corresponding jurisdiction. In the common law world such cases have to date been raised only in the USA, and as yet without great success. In the most recent development (at time of writing), application to appeal to the New York Court of Appeals was denied on 5 April 2018 in joined cases submitted on behalf of two chimpanzees, in which a writ of habeas corpus was denied at first instance: State of New York Court of Appeals, In re the Nonhuman Rights Project, inc., on behalf of Tommv v. Patrick C.

Protection of Animals in the Case Law of the ECtHR
Tom Sparks study more urgent. If anthropocentricism is a barrier to the formulation of meaningful principles to undergird animal welfare (let alone animal rights), then one must necessarily conclude that the human rights framework cannot contribute to the development of global animal law. 90 That question has been discussed elsewhere (and is taken up in several of the other contributions to this volume), and is too large and complex adequately to be discussed here. 91 However, in the present author's opinion, this proposition is not correct. On the contrary, human rights law can meaningfully contribute to the development of global animal law. Though it may be that global animal law will eventually need to separate itself from human rights law if it is to realise its potential, in its early stages of development there are numerous opportunities for synergistic interactions with frameworks such as the ECHR.
This is the argument forcefully and convincingly made by Connor Gearty in the wider context of environmental protection. 92 Gearty begins by acknowledging that environmental concerns (and, for our purposes, animal welfare and rights) do not sit easily alongside the human rights framework's proud anthropocentricism: The subject of human rights is, as it declares for all to see in the way that it describes itself, a field that is concerned not only with humans but also with the rights that flow from being human, rather than from being anything else[.] 93 Human rights law exemplifies and makes explicit a sin Anne Peters identifies more generally, that 'the law as it stands mirrors and reifies a human-animal divide'. 94 Yet Gearty argues that human rights has the potential to support environmental protection both through the protection of environmental activism ('protecting the messenger'), 95 and by offering a vocabulary of empowerment that activists can use.
It speaks meaningfully across the whole spectrum of a community, from the weak across to the powerful, deploying the convictions of the latter-rooted in the battles of the past-to force recognition of the need for similar struggles today.
[…] This chameleonism is often a source of frustration for sure, but it is what gives the idea of human rights the power that it undeniably enjoys in the world today. 96 Though human rights are intrinsically anthropocentric, the human rights project is a legally-embedded socio-linguistic mobilisation of empathy for the other. 97 Using the language of human rights carries with it the historical experience of the manifold struggles for justice that have been fought under its banner. Embedded in the framework are the memories of many claims once bitterly contested as radical oppositions to an entrenched power-structure which have succeeded in breaking into the mainstream consciousness, have overturned centuries of social practice, or have been codified as a minimum standard of positive morality in international declarations and conventions. The language, experience, and historical legitimacy-claim of human rights can be powerful tools in the campaign for animal (and wider environmental) rights, notwithstanding the inevitable friction between zoo-and anthropos-centrism.

Final Thoughts
Although that friction is more pronounced (and the radical discourse more constrained) within human rights viewed as a legal framework rather than a socio-political project, nevertheless many of the same arguments hold true. There are barriers to the direct treatment of animal concerns by human rights fora as a result of personal and material limitations on their scope of jurisdiction, but the caselaw of the ECtHR demonstrates that there remain opportunities to bring animal concerns under the umbrella of human welfare. This does, it is true, raise moral questions, in particular the '"speaking for the other" problem', as Catharine MacKinnon has pointed out. 98 Animal law remains human law, and it aspires towards a human interpretation of what "animal welfare" looks like. Yet though the interpretative divide is deeper, Peters is clearly correct to ask where the differences lie between speaking for animals and speaking for humans who lack legal capacity (Peters' example is children). 99 Arguably in the case of animals the situation is more problematic: where we raise children's concerns before Courts we do so for the benefit of the children involved, while animal rights at present flow from human rights only as a corollary of human concerns. The former is a case of speaking for, with all the moral difficulties that flow from that; the latter is an example of instrumentalisation. Yet there is also a zone of confluence, 100 in which human and animal wellbeing and rights coincide insofar as it can be demonstrated that protecting the one benefits the other. Peters uses the phrase "liberté, égalité, animalité" as 'a reminder that humans need legal protection not least on account of their animal nature, their physical vulnerability and their "nakedness", which they share with all other animals.' 101 It is indeed a salutary reminder that the human/animal divide is bridged in many respects, including the "vital interests" of both groups. 102 Articulating those confluences within the language of the ECHR and other human rights frameworks has the potential to catalyse the development of animal welfare as a sub-genre of the international human rights story, as well as to provide norms, ideas and impetuses which will cross into other jurisdictions and disciplines, and scholars should now take up this task. It is in these interactions that global animal law is growing and will continue to grow, 103 and this brief examination of the ECtHR suggests that human rights law has a meaningful contribution to make to that process.