Katie Sykes blogs on the threats that face animals in our globalized world.

In recent years animal welfare and animal rights have started to be taken more seriously in international legal scholarship. There is a nascent Global Animal Law movement that works to promote international legal protection for animals – meaning protection of individual animals as intrinsically valuable and significant beings, not just conserving aggregate populations of animals as valuable resources for human use. 

In a globalized world, the threats that face animals often have an international dimension. To name just a few examples, think of the 14,000 sheep that drowned in 2019 when a cargo ship en route to Saudi Arabia capsized in the Black Sea; the live animals on long international voyages that were caught in the delays when the Suez Canal was blocked by the grounded cargo ship Ever Given; the challenges of protecting species that migrate across international boundaries; and the effects of climate change and global environmental degradation on animal habitats and survival.

Global Animal Law scholars argue that we need an international law of animal protection to respond effectively to challenges like these, because uncoordinated domestic laws leave too many gaps.  And, on a more philosophical level, they (or, rather, we, since I include myself in this group) believe that a just international legal order must grapple with the ethical dimension of humanity’s relationship with nonhuman animals.

But attention to these issues in positive international law is still disappointingly sparse.  For years there have been discussions of an multilateral treaty on animal welfare, but the treaty does not exist.  A UN Declaration of Animal Welfare was drafted more than a decade ago, but it has lost momentum.  The jurisprudence of international courts and tribunals is almost completely silent on animal welfare and the moral significance of individual animals.

There is one notable exception: the EC—Seal Products case at the World Trade Organization.  This case started when the EU banned sales and imports of all seal products, citing the concerns of the European public about cruelty in the seal hunt.  Sealing nations Canada and Norway challenged the EU ban as an illegal restriction on international trade.  A WTO panel ruled on the case in 2013.  Here’s the rare exception to the general invisibility of animal welfare at international tribunals: the WTO panel stated that animal welfare is “a globally recognized issue” and “an ethical responsibility for human beings in general.” 

The panel’s decision was appealed to the WTO Appellate Body, which changed some aspects of the panel’s reasoning but came to a similar conclusion overall – and did not overturn or disavow the panel’s statements about the global significance of animal welfare.  Both the panel and the Appellate Body confirmed that concerns about animal welfare can be a legitimate reason to restrict trade under the “public morals” safe harbour in WTO law.  The ban survived (with some modifications), many other countries adopted similar bans on seal products, and commercial seal hunting has declined significantly.

This positive contribution to the development of global animal law from the WTO would have been pretty unexpected a decade or two ago.  In the 1990s and 2000s, many animal advocates saw the international trade regime as one of the greatest threats to progress on animal protection.  At the Seattle protests against the WTO in 1999, some of the demonstrators dressed up as turtles – a reference to their fear that the WTO would gut US trade restrictions on imported shrimp caught without equipment that protects endangered sea turtles from being caught in shrimp nets and drowned.  Governments dragged their heels on animal protection legislation that would affect trade, such as banning imports of cosmetic products tested on animals, invoking their worries about potential litigation at the WTO.

After EC-Seal Products, it is clear that WTO members can act to protect animals, not just for conservation purposes but also based on animal welfare concerns, without violating trade rules.  And the case is also important for the panel’s express recognition of the importance of animal welfare as a global concern and a responsibility of humanity.

It is not clear, however, how much difference this development has made or will make in practical terms to the global plight of animals.  Animal welfare protection is weak all over the world.  Even in the jurisdictions with the (relatively) strongest animal welfare laws, millions of animals endure almost unimaginable suffering, and the protections that do exist tend to be poorly enforced.  The WTO will not change this.  WTO law (as we know after EC—Seal Products) doesn’t have to prevent governments from legislating to protect animals – but it certainly doesn’t require it.  The WTO is not an animal welfare agency.  Its purpose is to facilitate global trade. Global trade in animals and animal products is steadily growing, and that means more animal suffering. 

Even the confirmation that WTO rules need not be an impediment to stronger animal protection laws may not change very much on the ground.  Governments don’t seem to have much trouble finding other reasons not to act to protect animal welfare, especially when there are competing business or other human interests.  On the other hand, there are some signs that governments may be willing to go further on some animal protection policies now that they no longer face the same uncertainties about running into WTO problems.  For example, Canada recently enacted a ban on the import and export of shark fins – the first G20 country to do so.

It’s possible that more evolution towards international agreement and collaboration on protecting animals could come from international trade law – but trade law outside the WTO itself. There is a huge number of non-WTO trade agreements, from bilateral deals between two trading partners to vast trading blocs that cover multiple countries and large portions of the global market, such as the Trans-Pacific Partnership (now the Comprehensive and Progressive Trans-Pacific Partnership or CPTPP).  An important feature of these more modern trade agreements is the inclusion of positivecommitments on non-trade matters (such as labour rights and environmental protections) that are connected to membership in the trading relationship.  In other words – if you want to be part of this trade deal, you also have to promise to live up to these standards on labour, the environment, etc. 

That “etc.” could include animal welfare.  In fact, in some bilateral agreements between the EU and other trade partners (including Chile, South Korea and Mexico), it already does.  Those deals have fairly weak language about developing mutually agreed standards on animal welfare and having consultations on animal welfare concerns, limited to matters that have to do with trade covered by the agreement.  All the same, these are international treaties that do expressly deal with animal welfare.  Scholars and activists have been advocating for an animal welfare treaty for all these years, and in a limited and nascent form such treaties do already exist.

The bigger multi-party trade agreements do not address animal welfare.  They do, however, routinely include entire chapters on environmental commitments, which includes the protection of animals to some extent.  An especially interesting feature of these provisions is that they create mechanisms for public participation.  In practical terms, this means that NGOs and even private citizens can request information and make submissions if their own governments are failing to live up to the environmental commitments under the treaty.

These mechanisms can be used to help protect animals.  In fact, they have been. Public participation provisions under a regional trade agreement called CAFTA-DR were used by Humane Society International and the Humane Society of the US in 2007 to address illegal killing of endangered sea turtles in the Dominican Republic, a party to the trade deal. Trade-related provisions like these could potentially become a starting point for generating collaborative international approaches to protecting animals, based on shared values and linked to enforceable obligations. In fact, it’s not far-fetched to imagine a multilateral treaty on animal welfare actually appearing in positive international law someday, in the form of a chapter appended to an international trade agreement.  International trade law may seem like an unlikely incubator of global animal law.  But perhaps this will indeed be where international animal welfare law starts to get a foothold in positive law and real-world action.

Animal Welfare and International Trade Law by Katie Sykes, Associate Professor, Faculty of Law, Thompson Rivers University, Canada is out now.

Read chapter 1 free on Elgaronline