Race to the bottom and other challenges

Another reasonable counterargument to the suggestion of imposing trade bans is that usually when environmental or animal welfare standards are elevated, producers tend to move abroad to countries where the legislation is looser and where they are able to stretch

350 United States — Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R, circulated 15 May 1998 (US-Shrimp).

351 McCulloch, 2019.

their profits, a phenomenon referred to as race to the bottom³⁵². Countries sheltering policies that increase the costs of production risk losing profit margins and external investment. Governments, especially in developing countries, are therefore constrained from maintaining policies that would otherwise improve important societies’ values, such as labour protections and environmental and animal welfare standards. Because investors and producers are attracted by absent or low government intervention, it is predictable that the competition trajectory in animal law is toward leniency³⁵³.

Accordingly, complementary policies are necessary to avoid international relocation to low animal welfare regions. I argue that some of the policy recommendations listed in this chapter are already inherently aligned with this objective. For instance, the problem of asymmetric information about the origins of animal products potentially available in the market could be addressed by voluntary or mandatory labelling schemes. Further supply-side policies could also be developed to compensate the costs of compliance with higher welfare standards, as in the case of tariff discrimination, compensatory payments to producers, and/or subsidies. These policies are justified by the premise that societies have an ethical responsibility for their production and consumption activities to be aligned with their own social values³⁵⁴. An existing example of the applicability of this idea is the fact that not only the production but also the imports and the consumption of foie gras have been banned in India³⁵⁵.

In trying to address these and other related issues of animal vulnerability within international borders, Charlotte Blattner elaborated approaches to justify extraterritorial jurisdiction measures to protect animals. As she pointed out, the obvious way, which would be coming up with multilateral agreements to solve the existing gaps in protecting animal across borders, are not the best current option because international treaties tend to converge to the lowest common denominator and are difficult to reach in the first place.

In addition, consumers and producers are unevenly distributed in the world, making some

352 Rudra, 2008.

353 Blattner, 2019.

354 Grethe, 2007.

355 Humane Society International, ‘India Foie Gras Import Ban Applauded’, 7 July 2014.

states prone to underregulating while others tend to overregulate, which makes a treaty on animal welfare even more unlikely. Thus, since an international treaty is not the most promising solution to tackle the race to the bottom problem in the context of animal law, extraterritorial laws provide states with an opportunity to timely respond to the dangers this would bring both for animals and for humans. By setting appropriate public policies with extraterritorial reach, the UK could prevent competition in laxity and regain its regulatory authority over national affairs.³⁵⁶

Ultimately, the concern with the proper treatment of animals, supported by the scientific recognition of animal sentience, widespread aversion to animal cruelty, grounds a universal value shared among states about the fact that the welfare of animals matters. In this regard, Blattner claims that a ‘general principle on animal welfare’ is universal to such a degree that it ‘promotes fundamental interests of the world community and upholds human values’, which is backed by the practice of the OIE, the UN, and the WTO, among other international organisations³⁵⁷. Although measures reflecting the concern with the proper treatment of animals face a lot of resistance from the WTO, states continue to adopt measures to prohibit inhumane transport³⁵⁸, inhumane slaughter³⁵⁹, inhumanely trapping³⁶⁰, cosmetic testing³⁶¹, among others. Along these lines, with the aid of further research, there are ample legal grounds for the UK to develop complementary policies to back up the mentioned bans and further its commitment to the higher welfare of animals.

356 Idem.

357 Blattner, 2019, p. 137.

358 18 USC, § 42(c) US, dealing with the limits on importation or shipment of injurious mammals, birds, fish (including mollusks and crustacea), amphibia, and reptiles.

359 US, Federal Meat Inspection Act, 21 USC, § 620(a).

360 Council Regulation 3254/91, 1991, OJ (L308) I.

361 Regulation 1223/2009 of the European Parliament and of the Council on Cosmetic Products, 2009 OJ (L342) 59.

CONCLUSIONS

This thesis has looked closely into the EU animal law to point out its main flaws, gaps, and inherent paradoxes from an ethical angle. The idea was to highlight that despite the huge progressive nature of the EU animal welfare system, which is considered a world leader in the topic, there is still plenty of room to push the boundaries towards a more cohesive and just legal system for animals. There is no escaping the truth that the industrial production of animal products accounts for boundless negative externalities that goes way beyond the impaired animal welfare, and also includes the emission of greenhouse gas emissions, environmental damage, and antibiotic resistance that directly affects human health. Even the EU, having a progressive and acclaimed animal welfare system, face immense challenges in interposing the market failures associated with intensive farming settings.

The thorough analysis conducted in this thesis has shown that animals used for farm purposes are the animals facing the greater suffering. This is not only because they are the greater in number but also because, in addition to acts of sadistic cruelty that might be inflicted upon any animal, farm animals are subject to institutionalised suffering, due to how certain commercial activities are conducted, as in the case of foie gras production, fur farming, and factory farming. Although these activities might be deemed as lawful in the EU, they are inherently contradictory to primary and secondary EU laws, as shown in chapters 2, 3, and 4.

The initial sub-questions were answered by laying down the applicable current legal framework and analysing the legal developments of Brexit to the field of animal law in the UK in chapter 2. The main strengths in the EU animal law, already woven into UK law, were the end of battery cages, the end of veal crates, the end of animal testing, and the bans on seal, dog, and cat furs. Another strength found in the EU animal law and not yet reproduced in the UK law was the recognition of animal sentience, although there are recent political actions towards it.

The main problems found in the EU animal law, pragmatically, were the leniency of sanctions for animal welfare offences and the contradictory nature of certain industrial

practices with the recognition of animal sentience, namely, fur farming, foie gras production, the export of live animals, and factory farming. Theoretically, the inconsistent treatment of animals of the same species, based on their purpose for humans, represents another flaw in the legal reasoning of EU animal law and another inconsistency with the bare acknowledgement of animal sentience.

Before drafting the final set of recommendations, this thesis has examined the animal law and legal philosophy literature to find out answers for the inherent paradoxes of the current legal welfarist paradigm. In chapter 4, it was discussed that the welfarist approach is flawed because, among other reasons, despite the words each jurisdiction chooses to use, no state is exempt from the property regime. Animals are treated as things and because of that, even their most basic interests are tradeable for humans’ trivial desires.

I went over different approaches drawn in the literature, such as theories of legal personhood or the legal status of ‘living properties’ to conclude that the law, as a living social phenomenon, has the ability to encompass different types of rights for different legal persons. An illustration of this idea is the fact that women have received different types of rights throughout the last century, being treated differently from men in many ways, despite being recognised as legal persons for a very long time.

In this sense, there is a multitude of theoretical approaches a state can lean on to counterweight the subjectivity of the limits of our necessity to exploit animals. While some legal questions remain hard to be tackled and are out of the scope of this thesis – such as what legal status animals should be granted in the law – certain legal reforms have shown significant practical results in other jurisdictions, such as including animal protection provisions in the Constitution and elevating animal rights to the position of fundamental, rather than simple, rights. The analysis of cases from Germany and Brazil case law have shown that these relatively simple approaches can help animals’ interests achieve higher parity before the ones of humans.

The final chapter of this thesis was dedicated to draft a list of recommendations aimed at governors and policymakers. These suggestions were drafted having in mind what immediate next steps could be taken to allow the UK to advance the legal heritage of the

EU in the field of animal law and become a world leader in the field. The firsts recommendations were to include the recognition of animal sentience in the law and the duty to protect animals in the Constitution, aiming to safeguard animals’ interests as fundamental rights and allowing them to have a fair stand in scenarios of a clash against human interests.

Another recommendation was to increase the criminal penalties of all animal welfare offences, in order to better reflect society’s condemnation of such acts. Other suggestions revolved around the development of strategic policies to improve the welfare of farm animals, which include but are not limited to, designing financial mechanisms to reward and incentivise higher welfare practices, such as subsidies and labelling schemes, and on the other hand, mechanisms to internalise the negative externalities of intensive farm systems, i.e. taxes, with the utter goal of disincentivising and ultimately abolish factory farming.

Finally, recommendations also included the imposition of trade bans for certain animal products of which production has already been prohibited in the UK, such as foie gras and fur. A trade ban on live exports was also suggested, which, by the way, has fortunately been included in the government action plan on animal welfare during the making of this thesis. To support the proposed bans, the final sections also analysed the legal grounds upon which these bans could be justified to maintain conformity with WTO Agreements.

BIBLIOGRAPHY

LITERATURE

Aaltola, Elisa - Wahlberg, Birgitta: ‘Nonhuman Animals: Legal Status and Moral Considerability’ (2015), Retfaerd Årgang, 38: 4(151), 83-104.

Abdalla, S., Abia, A., Amoako, D., Perrett, K., Bester, L., Essack, S., ‘From Farm-to-Fork: E. Coli from an Intensive Pig Production System in South Africa Shows High Resistance to Critically Important Antibiotics for Human and Animal Use’ (2021), Antibiotics (Basel), 10(2), 178–.

Andrighetto, G., ‘Effect of type of housing on veal calf growth performance, behaviour and meat quality’ (1999), Livestock Production Science, 57(2), 137–145.

Appleby, M.C., ‘The EU ban on battery cages: History and prospects’ (2003), D.J.

Salem & A.N. Rowan (Eds.), The state of the animals II: 2003, Washington, DC:

Humane Society Press, 159-174.

Asmelash, H. B., ‘Energy subsidies and WTO dispute settlement: Why only renewable energy subsidies are challenged’ (2015), Journal of International Economic Law, 18(2), 261–285.

Baxter, Emma M., Andersen, Inger L., Edwards, Sandra A., ‘Sow welfare in the farrowing crate and alternatives’ (2018), Woodhead Publishing Series in Food Science, Technology and Nutrition, Advances in Pig Welfare, Woodhead Publishing, 27-72.

Baxter, ‘The welfare problems of laying hens in battery cages’ (1994), The Veterinary Record, 134(24), 614-619.

Beattie, VE, O’Connell, NE and Moss, BW., ‘Influence of environmental enrichment on the behaviour, performance and meat quality of domestic pigs’ (2000), Livestock

Production Science 65(1-2):71-79.

Bekoff, M., - Meaney, C., Encyclopedia of animal rights and animal welfare, Greenwood Press 1998.

Blattner, C. E., Protecting animals within and across borders: extraterritorial jurisdiction and the challenges of globalization, Oxford University Press 2019.

Bowman, M., Davies, P., Redgwell, C., Lyster, S., ‘Lyster’s International Wildlife Law’

(20 Comba E., ‘Mixed human-animal representations in Palaeolithic art: an

anthropological perspective’ (2010) in Clottes J. (dir.), L’art pléistocène dans le monde / Pleistocene art of the world / Arte pleistoceno en el mundo, Actes du Congrès IFRAO, Tarascon-sur-Ariège, septembre 2010, Symposium ‘Signes, symboles, mythes et

idéologie…’, n° spécial de Préhistoire, Art et Sociétés, Bulletin de la Société Préhistorique Ariège-Pyrénées, LXV-LXVI, 2010-2011, 1853-1863.

Burns, C., Gravey, V., Jordan, A., Zito, A., ‘De-Europeanising or disengaging? EU environmental policy and Brexit’ (2019), Environmental Politics, 28(2), 271–292.

Christensen, T., Denver, S., Sandøe, P., ‘How best to improve farm animal welfare?

Four main approaches viewed from an economic perspective’ (2019), Animal Welfare, 28(1), 95–106.

Cochrane, A., Should animals have political rights?, Cambridge, Polity Press, 2020.

Copeland, P., ‘Europeanization and de‐Europeanization in UK employment policy:

changing governments and shifting agendas’ (2016), Public Administration, 94 (4), 1124–1139.

Darwin, C. edited by Beer, G., On the origin of species, Oxford University Press 1996.

Fangman, Thomas J. - Amass, Sandra F., ‘Postpartum Care of the Sow and Neonates’ in Youngquist – Threlfall 2nd Current Therapy in Large Animal Theriogenology, W.B.

Saunders 2007.

Favre, D. ‘Living property: a new status for animals within the legal system’ (2010), Marquette Law Review, 93(3), 1021–.

Favre, D., The future of animal law. Edward Elgar Publishing 2021.

Francione, G., - Kunstler, W., Animals, property, and the law, Temple University Press 1995.

Grethe, H., High animal welfare standards in the EU and international trade – How to prevent potential “low animal welfare havens”? Food Policy, 32(3), 2007, p. 315–333.

Gille, Paprika, foie gras, and red mud: the politics of materiality in the European union, Indiana University Press 2016.

Giménez-Candela, M., ‘Sentience and welfare for animals used in experiments’ (2018), Derecho Animal, 9(4), 9–28.

Glenn, C., ‘Constructing Consumables and Consent: A Critical Analysis of Factory Farm Industry Discourse’ (2004), The Journal of Communication Inquiry, 28(1), 63–81.

Kelch, Thomas G., Symposium article: ‘Towards universal principles for global animal advocacy (2016)’, Transnational Environmental Law, 5(1), 81–111.

Kramer, Matthew H, Wrongs and Responsibilities, Houndmills 2001.

Kurki, Visa A. J. - Pietrzykowski, Tomasz, ‘Legal Personhood: Animals, Artificial Intelligence and the Unborn’ (2017), Springer.

Ludwiczak, A., - Stanisz, M., ‘The Reproductive Success of Farmed American Mink (Neovison Vison) – A Review’ (2019). Annals of Animal Science, 19(2), 273–289.

Marino, L., ‘Sentience’ in Encyclopedia of Animal Behavior, Academic Press 2010.

McCulloch, S., ‘Brexit and Animal Welfare Impact Assessment: Analysis of the Threats Brexit Poses to Animal Protection in the UK’ (2019), Animals (Basel), 9(3), 117–.7

Morfuni, L., ‘Pain for profit: an analysis of the live export trade’ (2011), Deakin Law Review, 16(2), 497–538.

Nesheim, M., Oria, M., Yih, P., A framework for assessing the effects of the food system, Washington, District of Columbia: The National Academies Press 2015.

Nimon, A.J. - Broom, D.M., ‘The Welfare of Farmed Mink and Foxes in relation to Housing and Management: a review’ (1997), Animal Welfare, 8, 205-228.

Pedersen, Lene Juul, ‘Overview of commercial pig production systems and their main welfare challenges’ (2018), Woodhead Publishing Series in Food Science, Technology and Nutrition, Advances in Pig Welfare, Woodhead Publishing, 3-25.

Peters, Anne, ‘Global Animal Law: What it is and why we need it’ (2016), Cambridge University Press, p. 15.

Pretty, JN, Mason, CF, Nedwell, DB, Hine, RE, Leaf, Sand Dils, R., ‘Environmental costs of freshwater eutrophication in England and Wales’ (2003), Environmental Science & Technology Vol 37, No 2.

Proctor, Helen, ‘Animal Sentience: Where Are We and Where Are We Heading?’

(2012), Animals, 2(4), 628-639.

Reid, C., ‘Brexit and the future of UK environmental law’ (2016), Journal of Energy &

Natural Resources Law, 34(4), 407–415.

Rudra, N., Globalization and the race to the bottom in developing countries: Who really gets hurt?, Cambridge University Press 2008.

Russell, N., Social Zooarchaeology: Humans and Animals in Prehistory, Cambridge University Press 2011.

Sigsgaard, T., - Balmes, J., ‘Environmental Effects of Intensive Livestock Farming’

(2017), American Journal of Respiratory and Critical Care Medicine, 196(9), 1092–

1093.

Steiner, G., Anthropocentrism and its Discontents: The Moral Status of Animals in the History of Western Philosophy, University of Pittsburgh Press 2005.

Steinfeld, H, Gerber, P, Wassenaar, T, Castel, V, Rosales, M and de Haan, C., Livestock’s long shadow: Environmental issues and options, FAO, Rome 2006.

Stucki, S., ‘Towards a theory of legal animal rights: Simple and fundamental rights’

(2020), Oxford Journal of Legal Studies, 40(3), 533–560.

Sullivan, R., Amos, N., van de Weerd, H., ‘Corporate Reporting on Farm Animal Welfare: An Evaluation of Global Food Companies’ Discourse and Disclosures on Farm Animal Welfare’ (2017), Animals (Basel), 7(3), 17–.

Koskela, T., Väärikkälä, S., Hänninen, L., Nevas, M., ‘Evaluation of Criminal Sanctions Concerning Violations of Cattle and Pig Welfare’ (2020), Animals (Basel), 10(4), 715–.

van de Weerd, S., ‘Bringing the issue of animal welfare to the public: A biography of Ruth Harrison (1920–2000)’ (2008), Applied Animal Behaviour Science, 113(4), 404–

410.

Webster, S., ‘The effect of different rearing systems on the development of calf behaviour’ (1985), British Veterinary Journal, 141(3), 249–264.

White, S., ‘Into the Void: International Law and the Protection of Animal Welfare’

(2013), Global Policy, 4(4), 391–398.

Wise, Steven M., ‘Nonhuman Rights to Personhood’, Pace Environmental Law Review, 30:1, 2012, pp. 1277-1290.

Zinn, S., - Beck, A., ‘The human–animal bond and domestication: Through the ages…

animals in our lives’ (2014). Animal Frontiers, 4(3), 5–6.

OFFICIAL SOURCES

Australian government official website, Department of Agriculture, Water and the Environment, ‘Meat Consumption’ (21 October 2020).

<https://www.agriculture.gov.au/abares/research-topics/agricultural-outlook/meat-consumption#:~:text=Global%20meat%20consumption%20increased%20by,consumer

%20preferences%20and%20income%20growth> (last accessed on 23/01/2021).

European Commission, ‘Alternatives to pig castration’

<https://ec.europa.eu/food/animals/welfare/practice/farm/pigs/castration_alternatives_e n> (last accessed 25 January 2021).

European Commission, ‘Ban on animal testing’,

<https://ec.europa.eu/growth/sectors/cosmetics/animal-testing_en#:~:text=The%20testing%20ban%20on%20finished,applies%20since%2011

%20March%202009.&text=For%20these%20specific%20health%20effects,of%20alter native%20non%2Danimal%20tests> (last accessed 22/01/2021).

European Commission, ‘Commission Propose To Ban Veal Crates’, (24 January 1996),

<https://ec.europa.eu/commission/presscorner/detail/en/IP_96_79> (last accessed 20 January 2021).

European Commission, ‘EU Import Conditions for Fresh Meat and Meat Products’.

<https://ec.europa.eu/food/sites/food/files/safety/docs/ia_trade_import-cond-meat_en.pdf> (last accessed 24 February 2021).

European Commission, brochure on ‘The welfare of companion animals in Europe’,

<https://ec.europa.eu/food/sites/food/files/animals/docs/aw_newsletter_07_201307_en.p df> (last accessed 13 January 2021).

European Commission, ‘On the concept of the Five Freedoms’.

<https://ec.europa.eu/food/animals/welfare_en> (last accessed 06 January 2021).

European Commission’s Scientific Committee on Animal Health and Animal Welfare report on Animal Welfare Aspects of the Use of Bovine Somatotrophin. Brussels, Belgium. 10 March 1999. Conclusions 14-16 and 18.

European Food Safety Authority, Scientific Veterinary Committee, ‘The Welfare of Intensively Kept Pigs - Report of the Scientific Veterinary Committee’ (30 September 1997), <https://www.efsa.europa.eu/en/press/news/071220-0> (last accessed 22 January 2021).

European Parliament, European Parliamentary Research Service (EPRS), ‘European Implementation Assessment on the Regulation (EC) No 1/2005 on the protection of animals during transport and related operations’(October 2018).

<https://www.europarl.europa.eu/RegData/etudes/STUD/2018/621853/EPRS_STU(201 8)621853_EN.pdf> (28 January 2021).

European Parliament, ‘EU trade and transport of live animals’ (February 2020).

<https://www.europarl.europa.eu/RegData/etudes/ATAG/2020/646170/EPRS_ATA(20 20)646170_EN.pdf> (last accessed 26 March 2021).

European Parliament, Parliamentary Questions, ‘Implementation of ban on individual sow stalls, in force since 1 January 2013 in accordance with Directive 2008/120/EC on the protection of pigs’ (January 2013),

<https://www.europarl.europa.eu/doceo/document/E-7-2013-000321_EN.html?redirect> (last accessed 22 January 2021).

Giovannucci, Daniele for United Nations Department of Economic and Social Affairs, Division for Sustainable Development, ‘Food and Agriculture: The future of

sustainability’, February 2012. <

https://www.un.org/esa/dsd/dsd_sd21st/21_pdf/agriculture%20and%20food%20report.p df> (last accessed 23 June 2021).

House of Commons Library, ‘Live animals export’(03 September 2020).

https://commonslibrary.parliament.uk/research-briefings/cbp-8031/ (last accessed 01 April 2021).

House of Commons Library, Research Paper 00/04, ‘The fur farming (prohibition) bill, Bill 6 of 1999-2000’, p. 3,

<https://commonslibrary.parliament.uk/research-briefings/rp00-4/> (last accessed 01 March 2021).

Organisation for Animal Health (OIE), Homepage and ‘About us – history’ page,

<https://www.oie.int/> <https://www.oie.int/about-us/history/> (last accessed 18 January 2021).

Organisation for Animal Health (OIE), ‘Third OIE Global Conference on Animal Welfare: Implementing the OIE Standards – Addressing Regional Expectations, Kuala Lumpur (Malaysia), 6–8 Nov. 2012, ‘Recommendations’, Recommendation No. 9, p.

4’.

<http://www.oie.int/fileadmin/Home/eng/Conferences_Events/docs/pdf/recommendatio

<http://www.oie.int/fileadmin/Home/eng/Conferences_Events/docs/pdf/recommendatio

In document A Fair Deal for Animals: A legal pathway for higher animal welfare in the post-Brexit UK (sivua 84-99)