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Introduction

The way animals are treated has been described by Weisbrot[1] as the next great social justice movement given the previous social movements like for the freedom of blacks and emancipation of women as by Cao[2] as a major unresolved problem of social justice in the world today. One of the reasons for this unresolved problem is the poorly developed international regime of protection for animals. The legal framework for protection of animals differs from one nationality to another from long established and enforceable animal welfare standards in some nationals especially the developed nations to the complete absence of national legislation governing animal’s welfare in other nations especially in the third economy countries. This essay therefore seeks to determine the standards of international law and whether it can adequately protect wild animals. This will be done through review of the existing literature.

As observed by Cao[3], even in those nations where animals welfare laws are in place, the law is maybe heavily qualified as to provide protection for animals only in a given setting and not cover those in other settings. In addition, the basic concept of protection varies widely from simple probation of cruelty to a wide conception that requires the welfare needs of animals to be meet. The legal frameworks is further complicated for such cases like the United States of America and Australia by the fact that there may-be state-based laws that vary across a nation including to such fundamental issues like who/what qualifies as an animals.

 

Existing international legal framework

As far as the materials covered in this essay, there is no a single international regulatory system that covered the welfare of animals whether domesticated or wild animals. The European Union has been in the forefront as to establishing a regional framework of legal protection for union members[4]. These are however focused towards domesticated animals and the range of laws and directives in place seek to address various aspects of animal welfare including the welfare of farm animals, transport and slaughter of farm animals, keeping of farm animals among them layers, broilers, pigs, and calves, and experimentation on farm animals[5]. Given the complexity in this form of regulation, the European Commission released the animal welfare strategy advocating for simplified, general principles to substitutes the many specific regulatory instruments. Increased reliance on the general principles is consistent with the establishment of the regime, the recognition of the sentience of animals in the Treaty on the Functioning of the European Union[6].

The recognition of the sentience of animals in the treaty is considered to be an important for animal welfare and the treaty is considered to be a major reflection of the importance of animal’s interests. This is consistence with the steps that some countries have taken as to include the recognition of the rights of animals in the nation’s constitutional documents. Some of the countries that have recognised the interests of animals and animal’s welfare in general in their constitutions include India, Ecuador, and Germany[7]. The mere inclusion of animal welfare laws in national constitution might not by itself enshrine extensive protection for animals however, based on the fact that constitutional provisions are given heightened respect , it is of significant value getting a law that affects animals into the constitution. Having animal welfare laws in a nation’s constitution brings the issues of animal’s rights into the body politic and provides strong evidence of the increasing international spotlight on animal and their treatment under legal terms.

Despite the significance of the EU approach, an obvious weakness is the limitation of the law to a group of countries and therefore, while it is regionally significant and has the potential to providing useful insights to the larger project, is doesn’t meet the requirements for constituting a comprehensive global framework. Moreover, the quest to simplify the European commission standards for animal welfare by considering the use of science-based[8] animal welfare and allowing for more flexibility with the aim of increasing competitiveness for livestock producers is also considered to be a weakness. The driver for using the science based considerations for animal welfare is the use of outcome-based animal welfare indicators so as to compliment the prescriptive standards in EU legal framework. This is a data-driven process for assessing risk and it requires the European Food Safety Authority (EFSA) to develop animal-specific welfare measuring standards[9]. The problem with this ides is the use of science as the de factor standard in making decisions on animal welfare.

Camm and Bowles[10] argue that researcher and research organizations should be careful about reaching into the policy realm. Issues that touch on the welfare of animals are public policies and not science-based decisions therefore, it is important for scientific organizations globally to understand the laboratory is not the right place to determine the difficult questions on the quality of life for an animal versus the economic value and the social effects that come with placing limitations in the use of an animal[11]. In the actual and practical sense, the role of science organizations should not be to set environmental standards, but to advice decisions makers on the present effects and the potential future effects for various alternatives.

Behold the EU regional realm; there are agreements at an international level which give effect to the protection of animals especially the endangered species in the wild. One of these is the Convention on International Trade in Endangered Species of the Wild Fauna and Flora (CITES)[12]. Treaties such as this may require the humane treatment of an animal and therefore have welfare protection implications. In the case of CITES for instance, it is required that members should ensure that the living specimens are properly cared for as to minimize the risk of injury, damage to health, or cruel treatment during periods of shipment, holding, or transit[13]. It therefore maybe true to suggest that such a provision will require the sentience of affected animals and national states members to the treaty should adopt these animal welfare provision into the national legislation. Another example is the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) which has been enacted by the Federal Parliament of Australia as it in part gives domestic effect to the Australia’s CITES obligations. Section 303GP of the Act forbids cruel treatment to animals by making it an offence to knowingly or recklessly subject an imported or exported CITES specimen to cruel treatment.

The main challenge for this type of provision is that they are an exception rather than being the norm in the international animal rights and conservation legal framework. As suggested by Favre[14], one of the examples of the typical and prevailing conservation treaties that contain no provision that affects individual animal welfare interests of individual animals is the Convention on Biological Diversity (CBD). As a matter of fact, the CBD is argued to contain provision that are maybe contrary to the welfare of animals at an individual level for instance, Art 8(h) requires that parties who have contracted to the treaty should prevent the introduction of, control or eradication of alien species that are considered to be a threat to the ecosystem, habitants, or/and other species.

These treaties are however effective in the fact that they extend the protection to the environment, ands to the wild animals by virtue of being species inhabiting the environment. This protection though is not on the extension of the animal’s individual justice. International laws that address wild animals are purposed towards conserving them and preventing any eventuality of them becoming extinct species and not because an individual animals can feel pleasure and/or pain[15]. It is worth noting that, international treaties will most often overlook species and animals that are not considered as being endangered as well as domesticated animals. This therefore means that at the international level, the environmental perspective on the importance of wildlife as part of the natural ecosystem is widely accepted, but the conditions of life and death of individual animal’s in terms of how they are treated by humans around the globe are not yet the primary focus of the legal system.

Just as in the EU, the transnational approach to animal welfare protection and the approach that is taken in the international treaties for animal protection are, in their respective ways, too narrow to meet the requirements of an international welfare framework. The World Organization for Animal Health (OIE) is seeking assiduously to develop policy influence at an international level in the animal welfare arena[16]. This would be significant given the fact the OIE is truly at global reach; the organization has 178 countries as members. One of the outstanding and still forms the central focus for OIE is the prevention and control of diseases affecting animals[17]. The activities of animal welfare in the organization are tasked to a Working Group that was established in 2002.

While the OIE is considered to be the organization responsible for advocating for animal welfare internationally, activities towards the protection of animal’s welfare seem to be less pronounced not to mention how late they usually are. The OIE was established in 1924[18], but animal welfare has not been part of the organizations mandate, not until 2002. Nevertheless, since 2005 the organization has adopted eleven animal welfare standards that address some of the critical areas of animal welfare in particular the use of animals for transport on land, the use of animals in educational experimentation and science research, and the stunning and killing of farmed fish and animals that that slaughtered by humans for consumption[19]. These standards are collectively part of the Terrestrial Animal Health Code, which are eight of the eleven sets of standards, and the Aquatic Animals Health Code, which are three of the eleven sets of standards.

As the naming of the codes indicates, the majority of the standards address the health of animals, which includes animal’s diseases, with the welfare of animals being confined to a single chapter. According to Harrop[20], the inclusion of animal’s welfare into the agenda of OIE was construed to be an indication that the welfare of animals was no longer a concern of the developed economies but was also an issue that officially required attention of the international community at large. In fact, the OIE has been portrayed as being the international leader in matter concerning animal’s welfare, basically by the fact that, the organization has made considerably impressive strides in terms of the standards that govern animal’s welfare[21].

In the recent years and the future of OIE modus operandi has been and will be characterised by a commitment t communication, incremental change, consultation and continuous improvement. This approach is considered to be appreciate and more so due to the changing animal welfare management in the global scale[22]. This approach will also lead to a change of the animal welfare management from the national basis to the global platform. Under a political calculus, Harrop[23] argues that OIE is a politically powerful organization given the fact that it was established and it is run by wealthy governments that work in connection with business interests. This means OIE is the most likely intergovernmental organization through which a global animal welfare and protection agreement will be reached.

Based on the recent activities at OIE, it is with no doubt that the organization is placing itself strategy to meet this role. For example, starting 2004, the organization has convened a series of global conferences on animal welfare that brought together a wide range of stakeholders and managed to stimulate action by the developed nations and have them take the lead in regional development of initiatives targeted at promoting and developing animal welfare[24].

Despite the promising activity by OIE, there are several reasons why to be cautions concerning the extent to which the OIE approach can provide an effective global framework for animal protection and welfare. One of these is the fact that the existing animal welfare standards are expressed a broad manner. A review of the standards shows that there is liberal use of the aspiration word “should”[25]. The inclusion of this word amounts to an unenforceable guideline compared to a standard that uses the mandatory word “must” or explicit directional phrases. The second is the fact that, by putting aside the heavily qualified nature of the language used in the standards, it turns out that the codes are not formally enforceable against member countries because they are non-binding[26]. As an example, Favre[27] asses the OIE standard on live animal transport and he states that the standard includes no numbers, has not required inspections, doesn’t have prohibitions, and doesn’t make limitations on operations. The standard rather reads like a checklist that anyone from the member’s countries seeking to engage in live animals transport should consider.

The codes by OIE are considered to be useful for policy makers, but it is not an actual standard that places limitations or prohibits practices that are harmful to the welfare of animals. In addition, it cannot be expected to meet eh same expectation the organization is not charged with such an enormous responsibility[28]. While the OIE can establish dispute resolution process between member’s states where one is being accused of having violated one of the standards, the process is voluntary and whether one of the parties chooses to participate or not, there are no legally supported or binding punitive measures. Under the Terrestrial and Aquatic Animal Health Codes, the standards are enforceable between OIE member countries but no through the OIE arbitration process but rather as trade restrictions between OIE member countries who mare also members  of the World Trade Organization (WTO)[29].

The application of OIE guidelines therefore requires influence through international trade, and therefore requires the same to be understood through the context of trade rules stipulated by the WTO. The Agreement on the Application of Sanitary and Phytosanitary Measures and the General Agreement on Tariffs and Trade, that allows countries to make trade-restrictive actions if they are necessary for protecting the health of humans, plants, or/and animals within the importing country[30]. The WTO however recognizes the OIE as the international body for setting standards in matters of animal health, and not animal protection and welfare.

 

Japan whaling activities

The topic on animal protection and welfare in the international front has in the recent years sought some of the most aggressive activities against animal health and welfare. These include China’s participation in the ivory trade, and poaching being an extremely topical issue in the media due to the killing of ‘Cecil the Lion.’ Narrowing down to the Japan whaling program, the country has conducted a research whaling program in the North Pacific Ocean region[31]. This program is carried out with complete defiance of objections made by the international community, environmentalists, and animal advocates globally who claim that Japan’s so called whale research is nothing more than a cover-up for the illicit commercial use of products from whales in the Japanese market[32]. In 2000, after Japan announced not only continuation but also expansion of the controversial whaling program and expected increment of killing of certain whale species. This attracted an international outrage, but unfortunately, that was at as there was not a direct, powerful, and relevant international law to counter the intention of Japan.

In addition, the International Whaling Commission (IWC) alleged violation of the international whaling norms by Japan, based on an international ban on commercial whaling by arguing that Japan purported research purposes are in disingenuous and exploitative reading of the IWC regulations which has been done with the objective of meeting Japan’s commercial objectives[33]. Regardless of the international outcry and in complete defiance of IWC resolutions and the pressure of other countries like the United Kingdom and the United States, Japan and continued to primarily target minke whales.

 

Endangered Species Grounds and Concerns

The focus of the Humane Society and other marine life advocates has been on the Japanese whaling industry as a violation of the international law and as a threat to whale populations worldwide. The Humane Society in 2000 made formal requests to certify that Japan was undermining CITES Convention and its objectives for the projection of endangered species. Even though the request was a success with the then secretary certifying the requests, there were no immediate sanctions imposed. This was primarily because of the agreement to an IWC workshop to examine the whaling situation in Japan and the temporary cutbacks of whale hurting[34]. The inability to counter Japan whaling activities through a legislative measure is an indication of the wanting situation of international law for the protection of animal welfare.

The Humane Society made a highlight of the inherent risk in hurting a species that is under the endangered species or one whose endangered status is unknown. For example, while the status of the sperm whale is listed under endangered species as is the bryde’s whale, the Humane Society argues that the numbers of the sperm whale population indicate that they are stable. However, the Society states that given the many assumptions that accompany an estimate of the population of whales, there is the possibility that these estimates are not entirely accurate therefore when hurting, it should be done with caution[35]. This cautionary note is based on the fact that, whaling nations are not ordinarily concerned with conservation and the number of whales is not as prevalent or accurate therefore, the continuation of hurting promoted the risk of further pushing the species towards the edge of extinction.

Some of the countries party to the IWC for example Norway and Japan have questioned the authority of IWC in context of international law for the protection of animal welfare mainly because of the commission’s inability to enforce the resolutions and the regulations is has put forward[36]. These states hold the argument that the Whaling Conventions doesn’t prohibit harvesting healthy whale populations but rather it advocates for the sustainable harvesting of whale stocks[37]. It is however unlikely that these two countries, Norway and Japan, could repudiate their membership with the IWC, but their objections can be taken to be a signal to the probability that they will continue to push for reforms in the commission with the objective of testing the outer bounds of regulations on whaling.

Despite the fact that the IWC is targeted towards promoting the welfare of whales, Japan continues to facilitate the membership of pro-whaling nations to the IWC, nations that would vote in line with Japan. This therefore is a strong indication of the vulnerability of organizations and intuitions that are geared towards development of international regulations. With increased pro-whaling nations joining the members of IWC, it can only mean one thing, the undermining of regulations that check on and prohibit whaling. According to the Humane Society, Japan and Norway with the other pro-whaling nations joining the commission are making an effort to force the IWC back to the 19th century view on the relationship of humans and the whale. The Japanese Whaling Association (JWA) among other pro-whaling nations have been in the forefront in contending that the IWC has lost its legitimacy and the international regulations body for matters whales. This contention is based on the argument that the commission has strayed from its fundamental objectives of regulating the orderly development of the industry. This therefore in a major way slows or even back-tracks the efforts made by IWC and in general, threatens the realization of an international law that govern the protection and welfare of whales.

Japan holds the claim that its research is for scientific purpose, but is seeks to turn a blind eye to the non-lethal methods of obtaining information that have been proposed. The disregard for non-lethal methods of acquiring the research information has provided support for critics who argue that Japan uses the research story as a simple cover-up for other illicit commercial activities with whale meat[38]. Even though there is no clear information of the number of bryde’s and sperm whales lest, the CITES convention deems these animals as being endangered. This means that it is incumbent with Japan to comply with the emerging international consensus on how to preserve the world ecosystem[39].

 

Conclusion

It is clear that animal welfare in the current world is not well and comprehensively covered by global protection regime. The existing framework of international law in some way addresses animal welfare but largely falls deficient especially its comprehensiveness and enforceability. From the above decisions, there are a number of issues that emerge as being potential ways to enhance and further develop the current law on animal protection and welfare. These include enhancement of the OIE’s animal welfare standards, adoption of a universal declaration on animal welfare by United Nations or rather, the ratification of an international convection for the protection of animal welfare and just the first strategy, it is appropriate with the UN being at the forefront of the campaign. It is however worth acknowledging that, these approaches for enhancing international animal protection law may not be sufficient and they might both complement each other.

 

References

  1. Abboud, W, ‘The WTO’s Committee on Trade and Environment: Reconciling GATT 1994 with Unilateral Trade -Related Environmental Measures’, (2000), European Environmental Law Review, May, pp147-151.
  2. Ackerman, Reuben, ‘Japanese Whaling in the Pacific Ocean: Defence of International Whaling Norms in the Name of “Scientific Research”, Culture, and Tradition, (5-1-2002). http://www.bc.edu/bc_org/avp/law/lwsch/journals/bciclr/25_2/07_TXT.htm
  3. Camm T and Bowles D: Animal Welfare and the Treaty of Rome. A legal analysis of the protocol on animal welfare and welfare standards in the EU. (2000) Journal of Environment Law, 1292), 197-205.
  4. Cao, D. ‘Crimes against Animality: Animal Cruelty and Criminal Justice in a Globalized World’, (2013),in B. A. Arrigo and H. Y. Bersot (eds), The Routledge Handbook of International Crime and Justice Studies. Abingdon: Routledge.
  5. De Prez P: Excuses excuses; the ritual trivialisation of environmental prosecutions, (2000). Journal of Environmental law, 12(1), 65-78.
  6. European Commission, Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the European Union Strategy for The Protection And Welfare Of Animals, (2012-2015), Brussels. (15 February 2012) Retrieved 2015-08-06 from: http://ec.europa.eu/food/animal/welfare/actionplan/docs/aw_strategy_19012012_en.pdf
  7. Favre, D. ‘An International Treaty for Animal Welfare’, (2012) Animal Law, 18, pp. 237-280.
  8. Feddersen, C, ‘Recent EC Environmental Legislation and its Compatibility with WTO rules: Free Trade or Animal Welfare Trade? (July 1998), European Environmental Law Review, pp 207-215.
  9. Fox, M, Taking Dogs Seriously (2011), Law, Culture and Humanities, vol 7 (3), pp 37-55.
  10. Harrems, N, ‘The Leghold Trap Regulation and the Potential Pitfalls During the Dutch Presidency of the EU’, (January 1998), European Environmental Law Review, pp 7-12.
  11. Harrop S, The International regulation of animal welfare and conservation issues through standards dealing with the trapping of wild animals. (2000), Journal of Environment Law, 12(3), 333-360.
  12. Harrop, S, ‘The dynamics of wild animal welfare law’, (1997), Journal of Environmental Law, 9 No 2.
  13. Harrop, S. ‘Climate Change, Conservation and the Place for Wild Animal Welfare Law in International Law’, (2011) Advance e-publication Journal of Environmental Law,
  14. OIE, International Trade: Rights and Obligations of OIE Members. (2013d)Retrieved 2015-08-06 from http://www.oie.int/en/international-standard-setting/overview/legal-rights-andobligations/
  15. Ong, D, ‘The Convention on International Trade in Endangered Species (CITES, 1973): Implications of Recent Developments in International Law’, (1998), Vol. 10 No 2 Journal of Environmental Law.
  16. Ludwig and R. O’Gorman, ‘A Cock and Bull Story? – Problems with the Protection of Animal welfare in EU Law and Some Proposed Solutions’, (2008) 20(3) Journal of Environmental Law, 363-390
  17. Teubner, Gunther, ‘Rights of Non-humans? Electronic Agents and Animals as New Actors in Politics and Law’, (December 2006) vol 33, number 4 Journal of Law and Society, pp 497-521.
  18. Van Calster, G, ‘The WTO Appellate Body in Shrimp/Turtle: Picking up the Pieces’, (April 1999), European Environmental Law Review, pp 111-115.
  19. Van Calster, G, ‘The WTO Shrimp/Turtle Report: Marine Conservation v GATT Conservatism?’, (November 1998), European Environmental Law Review, pp 307-314.
  20. Weisbrot, D. ‘Foreword’, (2013) in P. Sankoff, S. White and C. Black (eds), Animal Law in Australasia: Continuing the Dialogue (2nd ed). Sydney: Federation Press.

[1] Weisbrot, D. Foreword, (2013)

[2] Cao, D. Crimes against Animality: Animal Cruelty and Criminal Justice in a Globalized World, (2013)

[3] Ibid.

[4] Harrems, N, The Leghold Trap Regulation and the Potential Pitfalls During the Dutch Presidency of the EU, (January 1998)

[5] De Prez P, Excuses excuses; the ritual trivialisation of environmental prosecutions, (2000).

[6] Feddersen, C, ‘Recent EC Environmental Legislation and its Compatibility with WTO rules: Free Trade or Animal Welfare Trade?’, (July 1998)

[7] R. Ludwig and R. O’Gorman, ‘A Cock and Bull Story? – Problems with the Protection of Animal welfare in EU Law and Some Proposed Solutions’, (2008)

[8] Fox, M, Taking Dogs Seriously (2011)

[9] Ibid

[10] Camm T and Bowles D, Animal Welfare and the Treaty of Rome. A legal analysis of the protocol on animal welfare and welfare standards in the EU. (2000)

[11] Harrop, S, ‘The dynamics of wild animal welfare law‘, (1997)

[12] Ong, D, ‘The Convention on International Trade in Endangered Species (CITES, 1973): Implications of Recent Developments in International Law‘, (1998)

[13] Ibid

[14] Favre, D. ‘An International Treaty for Animal Welfare’, (2012)

[15] Teubner, Gunther, ‘Rights of Non-humans? Electronic Agents and Animals as New Actors in Politics and Law’, (December 2006)

[16] OIE, International Trade: Rights and Obligations of OIE Members. (2013d)

[17] Ibid

[18] Ibid

[19] Van Calster, G, ‘The WTO Shrimp/Turtle Report: Marine Conservation v GATT Conservatism?’, (November 1998)

[20] Harrop S; The International regulation of animal welfare and conservation issues through standards dealing with the trapping of wild animals. (2000)

[21] Ibid

[22] Teubner, Gunther, ‘Rights of Non-humans? Electronic Agents and Animals as New Actors in Politics and Law’, (December 2006)

[23] Harrop S; The International regulation of animal welfare and conservation issues through standards dealing with the trapping of wild animals. (2000)

[24] Teubner, Gunther, ‘Rights of Non-humans? Electronic Agents and Animals as New Actors in Politics and Law’, (December 2006)

[25] R. Ludwig and R. O’Gorman, ‘A Cock and Bull Story? – Problems with the Protection of Animal welfare in EU Law and Some Proposed Solutions’, (2008)

[26] De Prez P, Excuses excuses; the ritual trivialisation of environmental prosecutions, (2000)

[27] Favre, D. ‘An International Treaty for Animal Welfare’, (2012)

[28] Abboud, W, ‘The WTO’s Committee on Trade and Environment: Reconciling GATT 1994 with Unilateral Trade -Related Environmental Measures‘, (2000)

[29] Ibid

[30] Van Calster, G, ‘The WTO Appellate Body in Shrimp/Turtle: Picking up the Pieces‘, (April 1999)

[31] Feddersen, C, ‘Recent EC Environmental Legislation and its Compatibility with WTO rules: Free Trade or Animal Welfare Trade?’, (July 1998)

[32] Van Calster, G, ‘The WTO Shrimp/Turtle Report: Marine Conservation v GATT Conservatism?’, (November 1998)

[33] Ackerman, Reuben, ‘Japanese Whaling in the Pacific Ocean: Defence of International Whaling Norms in the Name of “Scientific Research”, Culture, and Tradition, (5-1-2002)

[34] Van Calster, G, ‘The WTO Shrimp/Turtle Report: Marine Conservation v GATT Conservatism?’, (November 1998)

[35] Feddersen, C, ‘Recent EC Environmental Legislation and its Compatibility with WTO rules: Free Trade or Animal Welfare Trade?’, (July 1998)

[36] Cao, D. ‘Crimes against Animality: Animal Cruelty and Criminal Justice in a Globalized World’, (2013)

[37] Ibid

[38] European Commission, Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the European Union Strategy For The Protection And Welfare Of Animals 2012-2015

[39] Ackerman, Reuben, ‘Japanese Whaling in the Pacific Ocean: Defence of International Whaling Norms in the Name of “Scientific Research”, Culture, and Tradition, (5-1-2002)


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