2. LEGAL FRAMEWORK
2.1 Animal welfare under international law
The fact that the 180 member states of the World Organisation for Animal Health (OIE) recommended the institution to ‘support the development and implementation of OIE regional animal welfare strategies and consider the development of a global animal welfare strategy’21 is a fair illustration of the increasing global concern with the animal welfare issue. This concern has spread globally due to different reasons, among which, the concern for food safety and consumer health, ethical considerations, and compassion22. There is even divergence about whether the interest in animal welfare reflects a universal value, a global social normal, or even the rise of a general principle of law in the Article 38 of the Statute of the International Court of Justice (ICJ) sense, which would make it a formal source of international law23.
However, despite the increasing worldwide concern, regulation on animal welfare remains insufficient at the international level. This is because international animal law is often thought of as very closely tied to environmental protection. Provisions are mainly targeted at conservation, ensuing its focus on ‘species’, rather than on the well-being and rights of individual animals. The furthest the animal welfare issue gets in the international law is in the OIE’s codes. The OIE was created to develop international standards for animal health as a reference for the World Trade Organisation, with its main purpose to
20 Idem.
21 OIE official website, Third OIE Global Conference on Animal Welfare: Implementing the OIE Standards – Addressing Regional Expectations, 2012.
22 Peters, 2016.
23 Idem.
prevent and control diseases in animals24. OIE’s Terrestrial Code has a chapter devoted to recommendations for animal welfare, which it describes as ‘the physical and mental state of an animal in relation to the conditions in which it lives and dies’25. The Aquatic Code also portraits concern with the welfare of farmed fish, as it advocates the use of ‘handling methods appropriate to the biological characteristics of the fish and a suitable environment to fulfil their needs’26.
Regardless of the substantial number of instruments focused on wildlife, biodiversity, and endangered species at the international level, little, if any, attention is dedicated to the welfare, rights, and treatment of individual animals, especially those who are more frequently and numerously used and traded globally on a daily basis27. In addition, animal welfare provisions are placed in secondary law sources emanating from organizations, bodies, and Conferences of the Parties (COP), contrary to treaty law, which can be problematic as secondary law sources are typically non legally binding28. Without an international instrument specifically focused on the subject, animal welfare norms remain sparse across instruments primarily focused on other environmental-related topics, such as biodiversity and conservation treaties.
Examples of these treaties include the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which contains provisions obligating parties to minimize the risks of injury or cruel treatment during the transport of living animals29, and the 1991 Protocol on Environmental Protection to the Antarctic Treaty, which contains a provision requiring the taking of animal on the Antarctic landmass to be performed with the least degree of pain and suffering practicable30. Another perceivable reflection of animal welfare concern in the existing international environmental law is in
24 OIE official website, ‘History’ page.
25 Article 7.1.1, Terrestrial Animal Health Code, World Organisation for Animal Health (OIE).
26 Article 7.1.2, Aquatic Animal Health Code, World Organisation for Animal Health (OIE).
27 Peters, 2016.
28 Idem.
29 Arts III(2) lit. (c) and VIII(3), Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Washington, DC (US), 3 Mar. 1973, in force 1 July 1975.
30 Art. 3(6), Annex II, Protocol on Environmental Protection to the Antarctic Treaty: Conservation of Antarctic Fauna and Flora, Madrid (Spain), 4 Oct. 1991, in force 14 Jan. 1998.
the 1958 UN Conference on the Law of the Sea that requested states ‘to prescribe, by all means available to them, those methods for the capture and killing of marine life, especially of whales and seals, which will spare them suffering to the greatest extent possible’31.
Similarly, the Addis Ababa Principles and Guidelines for Sustainable Use of Biodiversity, adopted in 2004, called for a ‘more efficient, ethical and humane use’ of biodiversity32. Both the 1950 Convention for the Protection of Birds and the 1979 Berne Convention on the Conservation of European Wildlife and Natural Habitats contain provisions prohibiting the use of blinded or mutilated decoys, also demonstrating a concern with animal welfare and cruelty prevention33. Likewise, the 1972 Convention of the Conservation of Antarctic Seals enlists permitted capture methods, which are periodically reviewed in the interests of the ‘rational and humane use of seal resources’34. Its Annex also authorizes the creation of recommendations designed to ensure a quick, painless, and efficient killing or capturing of seals, which indicates an interest in the welfare of individual seals35.
The International Convention for the Regulation of Whaling has also been an important reference on the controversial concern about the welfare of individual animals under treaties with an initial conservational focus. The data submitted by Denmark in the Annual Report of the International Whaling Commission (IWC) in 2004 showed that the time taken by larges whales to die from the moment of being struck occasionally reaches the mark of twelve hours36. Such information provokes different reactions among IWC parties, leading countries such as the UK, Germany, and New Zealand, to argue that the
31 Resolution 5, on the Humane Killing of Marine Life, 1958 UN Conference on the Law ofthe Sea, Official Records, Vol. II, Doc. A/CONF.13/38.
32 Decision VII/12, Annex II, Practical Principle 11, Operational Guidelines. Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity, adopted under the Convention on Biological Diversity (CBD) in 2004.
33 Article 5 of the 1950 Convention for the Protection of Birds, Paris, entry into force in 1963; and Appendix IV of the 1979 Bern Convention on the Conservation of European Wildlife and Natural Habitats.
34 Article 3, Convention of the Conservation of Antarctic Seals, London, 1972, entry into force in 1978.
35 Idem, Paragraph 7(a) of the annex.
36 Data submitted by Denmark in Annex G, ‘Chairman’s Report’, Annual Report of the International Whaling Commission, 2004.
Commission had a moral responsibility to consider welfare issues under its formal competencies, while other traditional whaling nations argue that this is not the scope of the Convention37. Finally, the Agreement on International Humane Trapping Standards (AIHTS) between the EU, Canada, and the Russian Federation also demonstrates a concern with the welfare of wild animals, specifically fur-bearing animals trapped for their pelts, or for conservation and pest control purposes38. Through this treaty, parties agreed on minimum trap humaneness standards.
These existing provisions on animal law at the international level, as seen, are sparse and lack sufficient enforcement mechanisms. Peters defined the current global animal law as
‘fragmented, often qualified, often inconsistent, unenforceable, and moreover unknown to most lawyers, law enforcers and legal scholars alike’39. Similarly, White lamented the
‘current gap in the international legal protection of animal welfare’40. Globalisation makes regulation at the domestic level insufficient to address global animal welfare problems alone, requiring complementation by international rules in order to be effective41. Kelch elaborated on this idea by recalling the existing differences in the cultural boundaries of states42. He pointed the problems with the globalised use of animals, which demands animal law to respond globally, requiring for a common language to be fashioned to cross-cultural differences43. In this sense, Blattner developed the theory of extraterritorial jurisdiction, that will be further commented in chapter 5, as a way to fill this gap in the law.
Therefore, in the absence of a global enforceable instrument focused on the welfare of all animals, their protection remains compromised within fragmented excerpts of international treaties that do not address the aspect of globalisation and the trade of living beings. This gap reinforces the importance of states taking action at the national level, not
37 Bowman et al., 2010.
38 Agreement on International Humane Trapping Standards (AIHTS), Brussels, 1997, entry into force in 2008.
39 Peters, 2016.
40 White, 2013, p. 392.
41 Peters, 2016.
42 Kelch, 2016.
43 Idem.
only by creating efficient animal protection regimes within their jurisdictions but also by taking a stand in accordance with this premise before the international trade regime.
Relying on the existing international instruments is simply not enough.