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Animals

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Author: Anne Peters

Required knowledge: Link

Learning objectives:

A. Introduction

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International law as it stands has not only failed to acknowledge non-animal personhood but has overall payed very little attention to non-human animals (in the following: animals) at all. Animals are no international legal persons (subjects). Both the legal status of animals and the regulation of how humans should treat them lies in the domaine reservé of states which is only very gradually and selectively puncutated by some international or EU-norms, often only soft ones. International (and European) law is most developed with regard to wildlife, or attached to transboundary constellations (international animal trade and livestock transport), or to animals outside national jurisdiction (in the High Seas).

B. Wild animals: Status and protection

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Wild animals are commodified under international law (just as under domestic laws) and are qualified as natural resources.[1] They therefore fall both under the states’ “permanent sovereignty over natural resources”[2] and under the self-determination of peoples over natural resources.[3] The legal consequence of this status is that each state has the “sovereign” right to exploit its „own” resources pursuant to its own environmental and developmental policies.

The status as a resource under the sovereignty of the territorial or range state and for disposal of its people is mitigated but not eliminated by universal and regional treaties on species conservation, trade in endangered species, habitat protection, and biodiversity. In these regimes, very few and select groups of animals (belonging to certain species) are the objects of protection and conservation, or otherwise indirectly benefit from ecological measures. The overarching paradigm is one of human stewardship over nature and its elements. Under the purview of these regimes, the tension between conservation and human interests constantly comes up in the meetings or conferences of the parties. The intensification of international habitat and species conservation law would be more acceptable for humans in the global south if wildlife protection included also the restoration of wild animals in Europe and North America that were extinguished by human civilisation. Such an obligation has been read out of Art. 8 f) of the Biodiversity Convention.[4]

The international legal status of animals in areas beyond national jurisdiction (especially in the High Seas) is different but equally inconsiderate to the interests of the animals themselves. Marine life was here historically regarded as “res nullius” (open to acquisition and exploitation by all). After the experience of over-exploitation and risk of depletion, the concept of “res communis” (or “res communis omnium” or “res omnium”), that is common property, emerged for wildlife in international spaces.[5] More recent scholarly concepts are wildlife as a global “common concern”,[6] “common heritage”,[7] and “global environmental resource”,[8] up to biodiversity as a “global public good”.[9] These novel qualifications have been first applied to wild animals in areas beyond national jurisdiction, and later also to wildlife inside national jurisdictions.

These concepts are valuable answers to problems of global distributive justice and inter-generational fairness. However, the aspiration of justice is still limited to humans, and not directed toward the animals themselves. The principal legal consequence of all these categories remains identical: States are (at most) obliged to manage the animals (as living resources) in a cooperative and sustainable way, in order to secure their common exploitation by humans, including their killing. Moreover, the focus is still almost exclusively on the protection of species as a group and not on the welfare of animals as suffering individuals. Although animal welfare may be promoted as a side effect of species conservation, both goals often stand in tension, e.g. when combating ‘invasive species’. Finally, all new international law-based legal labels still treat animals as things as opposed to persons.

This would change only with the recognition of wild animals right to property or to sovereignty. From the property perspective, wildlife should become owners of the territory where it lives or roams. The property would be managed by a human trusteee who is obliged to act in the best interest of the animal owners.[10]

Alternatively, wild animal sovereignty could be acknowledged. From that perspective, the injustice of human encroachment into wild animal habitats resembles the injustice of colonisation. It needs to be acknoweldged and as far as possible remedied through restoration and other measures directed at facilitating and re-enabling wild animal flourishing.[11]

C. Concern for animal health as an international principle

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Animal health is the core mandate of the WOAH (World Organisation for Animal Health), founded under the name OIE in 1924.[12] It is also a main topic of the SPS-Agreement[13] which spells out the WTO members obligations under GATT in relation to sanitary or phytosanitary measures and the aplication of the exception in favour of “animal …health” (Art. XX (b) GATT). Animal health has become a prominent issue since the Covid-19 Pandemic. It is one of the three elements in the One-Health approach. ‘One Health’ signals that the health of humans, non-human animals, and the planet are inderdependent and indivisible and must therefore be protected in a holisitc way. This approach is pursued by an alliance of now four international organisations viz. programmes (WHO, FAO, WTO, UNEP).[14] It is also proposed as a principle of the draft treaty on pandemic preparedness currently under negotiation.[15] The attention paid by these regimes to animal health has until now been purely anthropocentric, namely to prevent zoonoses and to safeguard human health and food security.

D. Animal welfare as a customary norm or general principle

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Animal welfare (i.e. the well-being of animal individuals) has so far been addressed only very scarcly and in an ancillary fashion in some species conservation treaties.[16] Gradually, the international institutions entrusted with animal species conservation or animal health have begun to pay more attention to animal welfare and have even strectched their mandates in that direction.[17]

Notably, chapters with animal welfare standards have since 2002 been inserted into the (soft) animal health codes issued regularly by the WOAH, and are regularly updated.[18] In 2022, the UN Environmental Assembly adopted a ‘Resolution on the Animal Welfare ─Environment─Sustainable Development Nexus’.[19] This is the first mentioning of ‘animal welfare’ by a UN body. It seems to manifestat a ‘One welfare’-approach, in extension of the One-Health approach.

Animal welfare has become part of “public morals”. Under that heading, animal welfare considerations allow states to deviate from obligations to liberalise trade under Art. XX lit. a) GATT and parallel provisions in bilateral and regional trade agreements. A WTO Panel acknowledged “that animal welfare is a matter of ethical responsibility for human beings in general”[20] and that animal welfare is “a globally recognized issue”.[21] This was confirmed by the WTO-Appelate Body.[22] Concern for animal welfare is also a legitimate objective for limiting the exercise of international human rights (such as the right to property and contract, and freedom of research).[23]

Recent formal expressions of commitment to animal welfare seem to manifest the formation of a relevant opinio iuris.[24] They might also demonstrate a convergence upon a “general principle of law” (Art. 38 lit. c) ICJ Statute).[25]

However, a widespread relevant legal practice on respect for animal welfare is lacking. Around fifty percent of states have no animal protection legislation.[26] Against the background of wide variations in national legislation, the exact contours of the putative customary rule or general principle of international law are unclear. The hard core of the emerging universal principle seems to be only a prohibition of deliberate and wanton cruelty against animals.

E. Possible paths to future international animal personhood

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International legal personhood could be conferred on animals explicitly or even implicitly by treaty, and it could emerge as a customary rule, or as a general principle of international law. International law is particularly open to the personhood of non-humans − with states being the main persons in this legal order. The circle of international legal persons has never been closed but has been continously expanded. There is no intrinsic conceptual barrier against assigning legal personality to animals.

The concomittant change of the status of animals from ‘things’ (‘objects’) to ‘persons’ (‘subjects’) under international law would even match the status change of humans in international law that was triggered by legal developments after 1918 and completed only after 1945. In the the early 20th century – when the idea of international legal personhood was first sharply conceptualised – humans were relegated to the realm of things, they were explicitly and adamantly qualified as ‘objects’, not ‘subjects’ of international law, by influential scholars.

The currently booming case-law on animal personhood in domestic law might in the long run give rise to a general principle of animal personhood that could then enter into the realm of international law (Art. 38(1) lit. c) ICJ-Statute, provided that it is sufficiently widespread and transposable to the international legal order. The extant case law has been produced only by courts in the global south, with Latin American courts being frountrunners. This regional concentration might actually facilitate the spread of the underlying principle. Its universalisation would be less suspect of legal imperialism, because it would travel in the opposite direction than the traditional legal migration that has almost always flowed from the North-Western legal orders (backed by economic and political power) to the South. However, such a maturation of animal personhood into a general principle in international law is not yet in sight and not very likely.

Alternatively, animals could potentially benefit from the highly dynamic legislation and case law recognising rights of nature in all world regions, mostly in the global south.[27] It is not unlikely that these domestic developments will in the future give rise to a general principle of rights of nature. Then, it would be possible that the animals which form part of nature would also be elevated to a rights-holder under international law, with a right to exist in integrity and flourish.[28] This would then at the same time constitute or signal an international legal personhod of animals, even if only a so-called ‘partial’ one.

Animal international personhood would – unlike the international legal personhood of international organisations – not be an extension of states, but would rather feed on the moral pedigree of the personhood of humans. In this context, personhood appears to be more than a purely technical juridic device. It would signal that animals ‘count’ in international law and would convey the message that animals are intrinsically valuable. However, animals would always need some form of political and legal representation by humans in order to vindicate their legal status and rights if these are challenged or infringed.

F. Conclusions and Outlook

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Non-human animals are still far away from being recognised as international legal persons. More even, international law has up to now been a mixed blessing for them. Public international law treaties, due to their focus on animal species conservation, suffer not only from an animal welfare gap but even risk to pit animal species survival against individual animal welfare. Recent steps in the direction of upgrading the status and the interests of animals in international law are the expansion of regimes and institutional activity to cater for animal welfare, the rights of nature-movement, and the insertion of the One-Health principle into international governance.

These observations allow the conjecture that an overarching international norm of “animal protection” is emerging. This emerging norm seems to encompass both the conservation of wild animals against extinction and the safeguarding of welfare and rights of individual animals of all groups (domestic, wild, and liminal) against suffering.[29]

If developed (much) further along these lines, international law in the anthropocene might cater for the interests of animals to live in peace, even without enjoying the status of international legal persons. Importantly, however, the relevant international norms must be properly applied and implemented in the first place by national and local authorities. The need to design and monitor such domestic implementation warrants a global animal law approach.

Further Reading

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Peters, Anne, “Global Animal Law: What it is and why we need it”, Transnational Environmental Law 5 (2016), 9 -*

Peters, Anne (ed.), Studies in Global Animal Law, Heidelberg, Springer, 2020).

L’Observateur des Nations Unies, Vol. 45 (2018), *-* (« L’Animal » ; special issue)

Scholtz, Werner (ed.), Animal Welfare and International Environmental Law, Cheltenham, Edward Elgar, 2019.

Brels, Sabine, Le Droit du bien-être animal dans le monde: évolution et universalisation (Paris : L’Harmattan 2017)

Peters, Anne, ‘Animal Rights’, in: Christina Binder/Manfred Nowak/Jane Alice Hofbauer/Philipp Janig (eds), Elgar Encyclopedia of Human Rights (Cheltenham: Edward Elgar 2022), 129-135.

Alasdair Cochrane, Should Animals Have Political Rights? (Cambridge: polity 2020).

Sue Donaldson and Will Kymlicka, Zoopolis (Oxford: OUP 2011).

Christine Koorsgard, Fellow Creatures (Oxford: OUP 2019).

Visa A Kurki, A Theory of Legal Personhood (Oxford: OUP 2019)

Thomas Pietrzykowski, “Animal Rights”, in: Andreas von Arnauld/Kerstin von der Decken/Marti Susi (eds), The Cambridge Handbook of New Human Rights (Cambridge CUP 2020), 243-252.

Stucki, Saskia, One Rights: Human and Animal Rights in the Anthropocene (Cham: Springer 2022).

Kristen Stilt, Rights of Nature, Rights of Animals, Harvard Law Review 134 (2021), 276-284.

Christopher D. Stone, “Should Trees have standing? - Towards Legal Rights for Natural Objects”, Southern California Law Review 45 (1972), 450-487

John Hadley, Animal Property Rights: A Theory of Habitat Rights for Wild Animals (Lanham MD: Lexington Books 2015).

Karen Bradshaw, Wildlife as Property Owners : A New Conception of Animal Rights (Univ of Chicago Press 2020)

Stuart Harrop, “From Cartel to Conservation and on to Compassion: Animal Welfare and the International Whaling Convention”, Journal of International Wildlife Law and Policy 6 (2003), 85-*

Martha Nussbaum, **

Peters, Anne, Animals in International Law (Leiden: Brill 2021).

Anthony D’Amato und Sudhir K. Chopra, “Whales: Their Emerging Right to Life”, American Journal of International Law 85 (1991), 21-62.

Woolaston, Katie Ecological Vulnerability; The Law and Governance of Human-Wildlife Conflict (Cambridge University Press 2022).

Charlotte E. Blattner, Protecting Animals Within and Across Borders: Extraterritorial Jurisdiction and the Challenges of Globalization (Oxford: OUP 2019).

  1. ↑ See Art. XX lit. g) GATT and WTO AB, United States ─ Import Prohibition of Certain Shrimp and Srimp Products, AB-1998-4, WT/DS58/AB/R of 12 October 1998, para. 131. See also Art. V(1) of the Revised African Convention on the Conservation of Nature and Natural Resources of 11 July 2003; Art. 77(4) UNCLOS.
  2. ↑ UN General Assembly, Resolution 1803 (XVII) of 14 December 1962; ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, para. 244.
  3. ↑ Common Art. 1(2) of the UN Human Rights Covenants; Art. 21 of the African Charter on Human and Peoples’ Rights.
  4. ↑ Convention on Biological Diversity of 5 June 1992 (1760 UNTS 79). Arie Trouwborst, Jens-Christian Svenning, ‘Megafauna restoration as a legal obligation: International biodiversity law and the rehabilitation of large mammals in Europe’, Review of European, International, and comparative International Environmental Law 31 (2022), 182–198.
  5. ↑ Kemal Baslar, The Concept of the Common Heritage of Mankind in International Law, The Hague, Martinus Nijhoff Publishers 1998), 312.
  6. ↑ Baslar (note *), at 313.
  7. ↑ Rachelle Adam, Joan Schaffner, ‘International Law and Wildlife Well-Being: Moving from Theory to Action’, Journal of International Wildlife Law and Policy 20 (2017), 1-17 at 14.
  8. ↑ Michael Glennon, “Has International Law Failed the Elephant?”, American Journal of International Law 84 (1990), 1-43, at 34.
  9. ↑ Edith Brown Weiss, “Establishing Norms in a Kaleidoscopic World: General Course on Public International Law”, Recueil des Cours Vol. 396 (2018), 112.
  10. ↑ John Hadley, Animal Property Rights: A Theory of Habitat Rights for Wild Animals (Lanham MD: Lexington Books 2015); Karen Bradshaw, Wildlife as Property Owners: A New Conception of Animal Rights (University of Chicago Press 2020).
  11. ↑ Sue Donaldson and Will Kymlicka, Zoopolis (Oxford: OUP 2011), Chapter 6.
  12. ↑ International Agreement for the Creation at Paris of an International Office for dealing with Contagious Diseases of Animals of 25 January 1924 with annexed Organic Statutes (57 LNTS 135).
  13. ↑ Agreement on the Application of Sanitary and Phytosanitary Measures of on 15 April 1994 (UNTS **).
  14. ↑ WHO, FAO, WTO, Tripartite Concept Note on One Health (2010). In 2022, the three organisations signed a partnership with the UNEP, turning the tripartite into a Quadripartite; see ‘UN Environment Programme Joins Alliance to Implement One Health Approach’ (World Health Organization, 18 March 2022, * bessere ref.*
  15. ↑ *Ref*
  16. ↑ See e g Art. VII(7)(c) CITES.
  17. ↑ The Florianópolis Declaration on the Role of the International Whaling Commission in the Conservation and Management of Whales in the 21st Century (Florianópolis Declaration), 17 September 2018 (Res. 2018-5), preamble, 3d indent. *Whaling docus. IWC Working Group on Whale Killing Methods and Welfare Issues (WG-WKM&WI), “Cetacean Welfare Assessment Tool”. ** more*
  18. ↑ *last: OIE, ‘Terrestrial Animal Health Code’ (TAHC) (29th edn, OIE 2021); OIE, ‘Aquatic Animal Health Code’ (AAHC) (23rd edn, OIE 2021), reflecting the revisions at the 88th General Session (May 2021) https://www.oie.int/en/what-we-do/standards/codes-and-manuals/aquatic-code-online-access/.
  19. ↑ UNEA, Res of 2 March 2022 (UNEP/EA.5/L.10/rev.1).
  20. ↑ Panel Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R and WT/DS401/R (25 November 2013), para 7.409.
  21. ↑ Ibid., para 7.420.
  22. ↑ Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R and WT/DS401/AB/R (22 May 2014), para. 5.201.
  23. ↑ See the explicit reference to the protection of morals in Art. 10(2) ECHR (freedom of expression, which includes freedom of research).
  24. ↑ ICJ, Whaling in the Antarctic (Australia v. Japan), judgment of 31 March 2014, separate opinion of Judge Cançado Trindade, para. 9.
  25. ↑ M. Bowman, “The Protection of Animals under International Law”, Connecticut Journal of International Law 4 (1989), 487-500; Michael Bowman, P* Davies and Catherine Redgwell, Lyster’s International Wildlife Law, Cambridge, Cambridge University Press, 2nd ed. 2010), 680; K. Sykes, “’Nations Like Unto Yourselvs‘: An Inquiry into the Status of a General Principle of International Law on Animal Welfare”, Canadian Yearbook of International Law 49 (2011), 3-49.
  26. ↑ https://www.globalanimallaw.org/database/national/index.html.
  27. ↑ See UNGA ‘Harmony with Nature: Report of the Secretary General’ (26 July 2019) UN Doc A/74/236.
  28. ↑ This consequence has been drawn for the law of Ecuador by Constitutional Court of Ecuador, Mona Estrellita, Sentencia No. 253-20-JH/22, 27 January 2022.
  29. ↑ Katie Sykes, “Globalization and the Animal Turn: How International Trade Law Contributes to Global Norms of Animal Protection”, Transnational Environmental Law 5 (2016), 55-79.

Table of Contents

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Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes

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