Department of Law
Fall Term 2021
Master’s Thesis in Animal Law 30 ECTS
Cats’ nine lives European Union legislation on the trade of endangered animals and its effects on animal welfare
Author: Ida Aho Supervisor: Doctor Yaffa Epstein
Abstract
The issues raised in this thesis concern the adverse effects of EU's wildlife trade regulations, mainly the unequal treatment of captive and wild-born endangered animals. The nature of these regulations is analyzed from an animal law perspective. The purpose of the analysis is to determine whether the regulations are anthropocentric and, if so, what issues arise from it. Previous research has studied the legal personhood of animals in relation to animal welfare. This thesis continues that discussion by examining legal animal rights as a potential solution to the issues of wildlife trade. The analysis is pragmatic and employs a non-formalistic view of law. Consequentially, it uses a doctrinal and legal philosophical approach, meaning that sources outside of law are integral to the discussion. The results of the analysis show that EU’s wildlife trade regulations are anthropocentric and that this has led to severe issues regarding the welfare of endangered animals. In addition, the practical enforcement of the regulations has proven defective. Legal rights for animals seem to provide a viable solution to these issues, yet their practical implementation is complicated. The reasons for this are primarily financial and opinion-based. Therefore, a step-by-step approach, starting with limited fundamental rights and resulting in full legal personhood for animals, is recommended for this approach to be successful.
Table of contents
1 INTRODUCTION ...... 1
1.1 THE PURPOSE OF THE ANALYSIS ...... 2
1.2 LIMITATIONS ...... 3
1.3 APPROACH AND MATERIALS ...... 4 1.3.1 Methodology ...... 4 1.3.2 Materials ...... 5
2 HISTORICAL BACKGROUND ...... 6
3 EU LAW AND ENDANGERED ANIMALS ...... 8
3.1 ARTICLE 13 TFEU ...... 9 3.1.1 The meaning of welfare and sentience ...... 10 3.1.2 The hierarchical position of article 13 ...... 11 3.1.3 The implications of Centraal Israëlitisch Consistorie van België (Case C 336/19) ...... 13
3.2 CITES AND THE EU REGULATIONS ...... 14 3.2.1 Differences in the treatment of captive and wild individuals ...... 16 3.2.2 Why do the differences exist? ...... 17
3.3 THE WELFARE PARADIGM AND LEGAL LANGUAGE ...... 18 3.3.1 Use of the word specimen ...... 19 3.3.2 Minimizing the risk for injury, damage to health or cruel treatment ...... 20 3.3.3 An adequate level of protection? ...... 21
3.4 SUMMARY ...... 24
4 ANTHROPOCENTRISM IN THE EU REGULATIONS ...... 25
4.1 THE NATURE OF TRADE LAW ...... 26
5 PROBLEMATIC TRADE ...... 27
5.1 THE STATUS OF EU’S BIG CATS ...... 27 5.1.1 The keeping of live tigers ...... 28 5.1.2 Defective registration and illegal trade ...... 31 5.1.3 The case of the ten tigers ...... 32
6 FINDING A NEW APPROACH ...... 35
6.1 CURRENT KNOWLEDGE OF ANIMAL COGNITION ...... 35 6.1.1 Language, intellect and how to test it ...... 36 6.1.2 The animal mind – beyond pain and suffering ...... 39
6.2 LEGAL PERSONHOOD FOR ANIMALS, YES, OR NO? ...... 41 6.2.1 Defining rights ...... 42 6.2.2 Legal personhood ...... 43 6.2.3 Do animals possess legal rights? ...... 45 6.2.4 Animal rights in existing European legislation ...... 46 6.2.5 Common concerns about animals’ legal personhood ...... 49
6.3 THE ANIMAL RIGHTS APPROACH AS A REALISTIC SOLUTION ...... 52 6.3.1 The removal of animal-related products ...... 52 6.3.2 A step-by-step model for better protection ...... 54
7 CONCLUDING DISCUSSION ...... 56
7.1 THE NATURE OF THE REGULATIONS ...... 57
7.2 THE EFFECTS OF ANTHROPOCENTRISM ...... 57
7.3 IS THERE A VIABLE SOLUTION? ...... 58
BIBLIOGRAPHY ...... 59
CASE LAW ...... 59
UNION LEGISLATION ...... 59
MEMBER STATE LEGISLATION ...... 59
INTERNATIONAL AGREEMENTS ...... 60
LITERATURE ...... 60
MATERIALS FROM INTERNATIONAL ORGANIZATIONS ...... 62
WEBSITES ...... 62
OTHER MATERIALS ...... 63
1 Introduction
The trade of captive-born endangered animals and especially big cats is a centuries-old phenomenon that has gained new attention in recent years. In the European Union (EU), the releases of two NGO reports in 2019 and 2020 revealed severe deficiencies in the current legislative systems meant to control this trade.1 Consequentially, the problematic treatment of EU’s endangered animals became a topic of discussion that could no longer be ignored. The long history of wildlife trade has brought a range of issues with it, which is why there are and have been several legal instruments regulating this trade. The early wildlife trade laws almost completely disregarded the welfare of animals, and despite their naming, these rules were essentially created to suit human needs.2 Even though the regulations that exist today are not as blind to animal wellbeing, it still cannot be said that their sole focus lies in protecting the animals’ best interests. The EU has implemented CITES, one of the most developed instruments for wildlife trade regulation globally, as part of its binding legislation.3 It is therefore clear that the protection of wild fauna and flora lies within the Union’s interests. At the same time, the Union has passed legislation and made decisions controversial to CITES, leaving the scope of this interest unclear. Furthermore, Union regulations lack important definitions for central terms such as animal welfare and animal sentience, leaving much room for interpretation regarding the EU’s policy on animals.4 For these reasons, the weight of animal welfare in Union acts remains partially unclear.5 As the discussion on EU’s wildlife trade regulations keeps developing, an area of law closely related to this subject has also gained popularity in Europe. Animal law is a field of law that, in its current form, evaluates legislation from a zoocentric perspective.6 Many modern animal law scholars reject the traditional, anthropocentric interpretations of rules regulating the treatment of animals and argue for renewed interpretations for certain
1 See Four Paws, ‘Europe’s second-class tigers – Revealing the out-of-control captive tiger numbers and commercial trade’ March 2020; WWF and TRAFFIC, ‘Falling Through the System: The role of the European Union captive tiger population in the trade in tigers’ 30 September 2020. 2 ibid. 3 Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein OJ L 061 (Reg 338/97); Commission Regulation (EC) No 865/2006 laying down detailed rules concerning the implementation of Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein OJ L 166/1 (Reg 865/2006). 4 See section 3.1.1. 5 See the analysis in chapter 5. 6 Birgitta Wahlberg ‘Animal Law in general and animal rights in particular’ (2021) 67 Sc. St. L. 19–20.
1 paradigms of law such as legal personhood.7 From the perspective of animal law, the EU’s wildlife trade regulations are problematic in many ways, but perhaps the most prominent issue is that they do not see animals as individuals. The Union’s wildlife trade regulations make a separation between wild and captive- born animals, allowing captive-born animals to be treated in more ethically questionable ways than their wild counterparts.8 The unequal treatment of animals belonging to the same species has led to many practical issues urgently needing to be solved. An alarming example of this is a recent case where ten tigers were transported through multiple Member States without the legally required checks for their wellbeing, leading to unnecessary suffering, physical and mental damage, and one animal's death.9 It seems apparent that the EU’s wildlife trade regulations disregard animals' individuality, only giving non-human animals value as either parts of a species or as commodities to humans. Approaching animal-related legislation from a primarily human perspective has proved problematic both from legal enforcement and animal welfare viewpoints. It is evident that a change is needed in the way the Union approaches animal- related issues, but what this change should look like is not yet clear. From an animal law perspective, the introduction of legal animal rights could be a potential solution, but as simple as it sounds, the practical implementation of this idea might not be so straightforward.
1.1 The purpose of the analysis This thesis will review and analyze EU legislation regarding the trade of endangered animals from an animal law perspective. For this reason, the interests of individual animals will play a significant role in the way the legislation is discussed. The analysis has three primary purposes, the first of which is to show that the EU’s wildlife trade regulations are anthropocentric and affected by their colonialist past. The central claim presented in this part of the thesis is that the animal trade regulations are not truly focused on animal protection, welfare, or rights. Furthermore, it is claimed that the legislator sees animals first and foremost as a means to achieve human goals, most of which are purely related to materialistic wants and needs.
7 Wahlberg (n 6) 21. For further insights see also Visa kurki “Onko elain esine? Eläimen oikeudellisesta asemasta” (2020) 6 Lakimies 845–871. 8 See section 3.2 CITES and EU regulations. 9 This case is discussed more closely in section 5.1.3.
2 Having shown that the examined legislation is human-centred, the analysis then describes the issues arising from anthropocentrism. This part of the analysis focuses on the subject of differential treatment in intraspecies comparisons. Trade rules regarding captive and wild-born big cats are used as an example to demonstrate this. The practical and theoretical effects of unequal treatment are assessed with the help of current research regarding the big cat trade to, from and inside the EU. The primary goal of this analysis is to show that the legislator’s views of animals, presented in the current legislation, are not in line with the developmental directions that EU law has taken by giving more weight to animal welfare and recognizing animal sentience. The analysis also aims to show that the current legislation is problematic from the viewpoint of moral theories, current scientific knowledge of animal cognition and species conservation. The last part of this thesis focuses on solving the earlier presented issues by offering viable legal solutions that could be applied at Union and Member State levels. The analysis aims to show that current EU trade legislation should be reassessed from an animal law point of view and made to accommodate the needs of individual animals better. This could potentially be done by reconsidering the legal standing of animals. A large part of this discussion focuses on the possibility of expanding the definition of legal personhood and thus enabling non-human animals to have legal rights in ways similar to humans. To summarize, based on what has been described above, this thesis will focus on finding answers to the following three questions: 1. Is EU legislation regarding the trade of endangered animals anthropocentric, and if it is, 2. what are the problems arising from anthropocentrism, and lastly, 3. could the animal rights approach be a viable solution to these issues?
1.2 Limitations The primary focus of this thesis lies on the issues related to the trade of endangered animals. For this reason, this thesis will not discuss or present solutions to the overarching problems of animal welfare in the Union unless these issues are directly related to solving the issues with trade. This applies especially to the question of animals’ legal personhood, which will only be discussed within the context of the problems presented in earlier chapters.
3 It is also to be noted that even though CITES and the EU regulations implementing it apply to both fauna and flora, this essay only discusses these rules regarding animals. Furthermore, to limit the amount of material and keep the analysis concentrated, the focus of this thesis lies primarily on the treatment of big cats listed in Annex A of regulation 338/97. This does, however, not mean that the results of the analysis, i.e., the problems of the trade and the possible legal solutions to them, would not apply to other species outside the scope of big cats. Therefore, while recognizing the limitations of the analysis, it is essential to keep an open mind when it comes to applying the ideas presented in this thesis on a broader scale.
1.3 Approach and materials I have chosen to analyze the questions presented in this thesis with the help of both a doctrinal and legal philosophical approach. EU’s wildlife trade legislation has a normative nature as it is based on predetermined ideas and standards of how animals should be treated. By approaching this subject from a dual perspective, it is possible to conduct a legal analysis of the current legislation whilst also questioning the correctness of these norms. The analysis is multi-disciplinary, meaning that its sources are not purely legal and have a strong basis in both natural and social sciences such as biology and psychology. Because of this, I have also used sources outside of traditional literature to collect information for this thesis.
1.3.1 Methodology Following the doctrinal approach, a large part of the analysis in this thesis focuses on evaluating and interpreting legal sources.10 The problems discussed in the analysis are primarily based on legislation. As mentioned in the previous section, this thesis aims to find a legal solution to a legal issue, which is naturally an integral part of the doctrinal approach. However, finding a legal solution is just one part of the discussion and perhaps even more important are the moral and societal questions that arise from anthropocentrism. These questions are best addressed with the help of legal philosophy as this approach is not limited by the constraints of normativity.11 The interplay between law and moral is a longstanding debate amongst legal scholars that cannot be avoided
10 Bhat P Ishwara, Idea and Methods of Legal Research (1st edn, Oxford University Press 2019) 155– 161. 11 See Mark Van Hoecke, Methotodologies for legal research (Hart Publishing 2013) 15.
4 when discussing animal rights. It is, therefore, also something that I will indirectly touch upon in my analysis.12 The method chosen for the analysis can be described as pragmatic as the concepts presented in this thesis are analyzed with the help of their contextual meaning and purpose.13 This means that law and legal phenomena are assessed as a part of a more extensive system that, holistically, needs to be evaluated in its entirety instead of only focusing on the individual rules and meanings.14 For the animal trade regulations, this means that they are examined as parts of a larger set of animal-related legislation that is affected by not only legal but also scientific and societal developments of the European Union and its Member States. Therefore, the proposed legislative changes will also be based on this non-formalistic view of the law.
1.3.2 Materials Due to the chosen approach, this thesis uses a multitude of different materials to answer the questions presented in the previous section. The primary legal source materials are the Union’s wildlife trade regulations, case law from the court of justice and occasionally from the national courts of Member States. However, because the amount of case law directly regarding the trade of endangered animals is severely limited both at Union and national levels, and because decisions from national courts often present a language barrier, this thesis will only dive deeper into one such case, presented more closely in section 5.1.3. A large part of the discussion regarding the problems of endangered animal trade is based on the two earlier mentioned reports by WWF, TRAFFIC and Four paws.15 It is also important to note that all information provided by NGOs has been approached with their politically inclined nature in mind. Furthermore, an essential part of the research process has been interviews with multiple animal law and animal trade professionals, from whom I have received a lot of information and inspiration for the analysis presented in the upcoming chapters. This applies especially to section 5.1.3, where the primary source of information is an interview with an NGO representative, Andrea Cassini.
12 This will be a continuing theme throughout the whole thesis but is the most prominent in chapter 6. 13 For further discussion on the pragmatic method see Jules L. Coleman, The practice of principle (Oxford University Press 2001) 6–7. 14 ibid. 15 These organizations and their reports will be discussed more detailed in chapter 5.1.
5 For the pragmatic method to succeed, I have also found it necessary to integrate scientific sources outside of law and legal philosophy into the analysis. Therefore, the philosophical questions presented in this thesis are discussed both with the help of literature on moral and legal philosophy and research within animal psychology and animal cognition. As a relatively new field of science, psychology became a part of legal philosophical research at a somewhat late state. However, the influence of psychological research in different areas of law has grown increasingly through the 21st century, and it now has a prominent position in fields such as criminal law, where the techniques of psychological analysis can be used, for example, to decide on a suspect’s innocence or to find the appropriate penal consequences in each case.16 In legal philosophy, psychological research is used to determine how legal norms are created and applied as a part of a more significant socially constructed idea of a legal system.17 Psychology describes our internal mental processes and provides information about what makes us act or think in a certain way, what our behavioral drivers are and how we form our ideas of morality.18 Therefore, psychology offers an excellent tangible basis for legal philosophical arguments of what law should look like from a moral standpoint. This is also how the psychological materials presented in the upcoming analysis should be perceived as their intended function is primarily to support the fundamentally moral arguments for animal rights introduced later in this thesis.19
2 Historical background
The trade of wild animals has been a part of human culture for a long time, dating all the way back to antiquity.20 In this time, rare and exotic animals have served many different roles in people's lives, being a part of different cultural traditions, fashion, and even medicine. However, throughout these centuries, there has been one thing consistently attributed to the ownership of wild animals or products derived from them: status. The trade of exotic animals gained more popularity in the medieval period when the highest classes of people wanted live animals and products derived from them as signs of
16 Marko Novak, The Type Theory of Law: An Essay in Psychoanalytic Jurisprudence (Springer 2016) 9. 17 ibid. 18 ibid. 19 See chapter 6. 20 I have discussed the historical background of animal trade legislation in a previous essay called ‘The development of European wildlife trade legislation’ submitted as a course work for Legal History and Contemporary Jurisprudence in 2021. Chapter 2 is based on what I wrote in that essay.
6 their wealth.21 However, the colonial times was when the trade truly started to flourish as products made from exotic animals, thanks to the European colonialists travelling to foreign countries and bringing animal artefacts home with them, became more accessible to the larger audiences who then also wanted to take part in the trade.22 The market for animal products has continued to expand throughout the 20th and the 21st centuries as technological developments continuously allow for new types of trade, both legally and illegally.23 During its entire existence, the market for wildlife trade has always been detrimental to vulnerable species. This was a concern first expressed by the early British colonialists, who created game laws for the African colonies of Cape and Transvaal during the early half of the 19th century.24 These local hunting laws later inspired powerful international conventions such as the London convention of 1933 and its predecessor, the London convention of 1900, that never entered into force.25 Regardless of its failure, the convention of 1900 helped develop future conservation legislation and affected the formulations of the 1933 convention.26 Regardless of their naming, the early laws and conventions on animal conservation focused mainly on human interests instead of the preservation of species as essential parts of ecosystems or otherwise valuable life-forms. This can be seen most clearly in the London convention of 1900, which included paragraphs regarding the extermination of predatory species such as crocodiles, lions, and hyenas.27 These animals hunted the same prey as humans, and the populations of prey animals could not endure the combined level of hunting from both parties. The best solution to this issue was thought to be getting rid of the competition entirely.28 This way of thinking was present in much of the early conservation legislation and has unsurprisingly proven detrimental to many vulnerable predator species, especially in Africa.
21 Daan P Van Uhm, The Illegal Wildlife Trade – Inside the World of Poachers, Smugglers and Traders (Springer International Publishing Switzerland 2016) 5. 22 ibid 6–11. 23 Van Uhm (n 21) 6–11. 24 Mark Cioc, The Game of Conservation: International Treaties to Protect the World’s Migratory Animals (Ohio University Press 2009) 28–29. See also Convention Designed to Ensure the Conservation of various species of wild animals in Africa, which are useful to Man or inoffensive (London convention of 1900); Convention Relative to the Preservation of Fauna and Flora in their Natural State (London convention of 1933). 25 ibid. 26 Cioc (n 24) 28–34. See also IUCN, ‘An Introduction to the African Convention on the Conservation of Nature and Natural Resources’ (2004) IUCN Environmental Policy and Law Paper No. 56 3. 27 London convention of 1900 (n 24) Schedule V. See also Cioc (n 24) 35. 28 Cioc (n 24) 35–6.
7 Fortunately, as a side product of the fast-developing market for endangered animals, many concerns regarding animal welfare and the legal status of animals have started to rise. As a result, developments within animal trade legislation have become progressively more focused on the actual protection of animals instead of concentrating solely on human interests.29 The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is one of the leading products of this development and, compared to its predecessors, CITES genuinely is a much more advanced and conservation-focused piece of trade legislation. CITES' effect on the EU and its Member States is analyzed more closely in chapter 3 of this thesis.
3 EU law and endangered animals
This chapter discusses the legal position of endangered animals in the EU from two different aspects. The first aspect regards the recognition of animal sentience and wellbeing in article 13 of the Treaty on the Functioning of the European Union (TFEU). Central questions for this part of the analysis regard article 13 and its implications for the actions of the Union and its Member States. Whilst the application of paragraph 13 is not limited to endangered animals, it still plays an integral part in how animal trade regulations are formulated and applied. 30 Therefore, it is also an integral part of the legal framework that regulates the welfare and conservation of endangered animals. After discussing the level of protection guaranteed by article 13, the analysis examines the wildlife trade regulations controlling the trade of endangered animals.31 These regulations implement the CITES agreement incorporated into EU legislation. Because the regulations are based on CITES, their primary focus is supposed to be the protection of endangered species of fauna and flora from the adverse effects of both legal and illegal trade.32 However, contrary to this goal, the formulations in these regulations seem to speak for a different understanding of animals.33 In addition to this, the Union has deviated from CITES recommendations by allowing the commercial trade and breeding
29 Van Uhm (n 21) 27. 30 Art 13 TFEU states that it applies to the ‘Union's agriculture, fisheries, transport, internal market, research and technological development and space policies’. 31 Reg 338/97 (n 3); Reg 865/2006 (n 3). 32 See Reg 338/97 (n 3) Preamble and art 1. 33 See section 3.3.
8 of tigers making some experts question whether its commitment to CITES is genuine or not.34 The second part of the analysis starts by presenting the relevant rules of the regulations and their relation to CITES. After this, the legal pitfalls of big cat protection will also be addressed. The differential treatment that the regulations subject captive and wild-born animals to is explained and discussed from the legislator’s and the animals’ viewpoints, with a focus on its effects on individual animals. Lastly, the formulations of the regulation texts are reviewed from an animal law perspective.
3.1 Article 13 TFEU Article 13 TFEU states that the Union should, in the implementation and formulation of its agriculture, fisheries, transport, internal market, research, technological development and space policies, pay full regard to the welfare of animals because they are sentient beings. Simultaneously, the Union should also respect the Member States, traditions related to religion and cultural heritage.35 Animals are an integral part of countless religious and cultural traditions in EU Member States, such as halal meat and traditional medicine.36 Whilst some of these traditions are unproblematic, others can be harmful to the animals and cause unnecessary pain that could be prevented with the help of stronger legislative protection. However, providing stronger protection for animals often means giving up certain human interests, which many are not willing to do. Article 13, therefore, puts two interests of the Union against each other, forcing judicial bodies to balance interest whenever the paragraph is applied. For this reason, the hierarchical position and interpretation of article 13 have been under much discussion, and legal professionals in EU Member States do not fully agree upon the implications of the paragraph.
34 This will be discussed more in later chapters. 35 TFEU art 13. 36 Whilst traditional medicine is often in our minds connected to Asian countries there are still multiple ancient medicinal tradition including for example the use of hedgehog spines that remain present in Union territory. For further information see Cassandra Quave and Andrea Pieroni, ‘Mediterranean Zootherapy: A Historical to Modern Perspective’ in Romulo Alves, Ierece L. Rosa (eds), Animals in Traditional Folk Medicine: Implications for conservation (Springer 2013) 308.
9
3.1.1 The meaning of welfare and sentience The interpretation of the terms welfare and sentience within the context of article 13 is not explained in Union legislation which makes the application of this article somewhat uncertain. However, defining these terms is essential for the application and analyzation of article 13, which is why the following analysis tries to find a definition for these terms. Welfare is a term that is widely understood to consist of both psychological and physical aspects, and it is therefore unsurprising that psychology plays a role in many welfare definitions. However, the definition of human and animal welfare is not considered the same, which is why for the purposes of this analysis, it is necessary to look at literature specifically focused on animals. Donald Broom’s article describes animal welfare as ‘a potentially measurable quality of a living animal at a particular time’.37 In practice, this means that welfare is a state of being that can be both good and bad, and that should be measured with the help of the animal’s reactions in a given situation. These reactions are considered to be an indicator of whether the animal’s needs are fulfilled or not.38 Broom describes in his article that negative responses like stress and pain indicate bad welfare whilst positive reactions such as the expression of joy and physical wellbeing indicate that the animal has had its species-specific needs fulfilled and is, therefore, a content and balanced individual.39 The needs of an animal vary from case to case, but examples of animal needs can be necessities such as food and water, intellectual stimuli in the form of toys and other activities, or the possibilities for communication with other members of the same species.40 Broom notes, however, that the now presented legal idea of animal welfare differs significantly from the one described in the moral discussions that animal law revolves around.41 This is because it focuses much more on the fulfilment of animal needs in specific conditions than on whether the activities themselves are appropriate or not from the viewpoint of the individual animal. Broom’s definition of animal welfare as measurable qualities and reactions of an animal in a given situation is commonly accepted by legal scholars, which is why it seems
37 Donald Broom ‘Animal welfare in the European Union’ (2017) European Parliament Policy Department, Citizen’s Rights and Constitutional Affairs, Study for the PETI Committee 14. 38 ibid 15. 39 ibid. 40 ibid 14–15. 41 ibid 16–17.
10 likely that it would also apply in the case of article 13.42 Based on this assumption, it can be questioned whether article 13:s potentially narrow definition of welfare provides the animals with a sufficient level of protection when it comes to the trade of endangered animals. These questions are central to the subject of this thesis and will be discussed in the upcoming sections.43 The scientific definition of sentience is complex but the term is typically associated with one’s ability to feel sensations, such as joy, pain, sadness or anger.44 This applies to both humans and non-human animals alike.45 Within the context of EU law concerning the treatment of animals, sentience is commonly understood to consist of the ability to feel physical pain or suffering, which may point to a similar definition even when it comes to article 13.46 If this is the case, a direct interpretation of article 13 sets a requirement for Union institutions and Member States to see that the animals’ physical and, to a certain extent, even psychological wellbeing is considered in all actions that fall under the article’s scope. Putting the notions of sentience and welfare made in this section within the context of trade, it seems that article 13 mandates all Union actors to ensure that the traded animals’ species-specific needs are fulfilled so that they do not suffer physical or mental pain. This demand by itself is relatively straightforward but becomes more complicated when combined with the requirement to respect cultural and religious traditions. How should the interest balancing be done when religious and cultural practices are put up against the interests of animals? To answer this question, an analysis of the hierarchical position of article 13 is needed.
3.1.2 The hierarchical position of article 13 Some scholars are of the opinion that the hierarchical position of article 13 in EU legislation is lower than the position of the Union’s formal objectives set in the TFEU.47 One such scholar is Katy Sowery, who in her article states that animal welfare
42 Broom (n 37) 14. 43 See chapter 3.3.2. 44 KP Chandroo, IJH Duncan and RD Moccia, ‘Can fish suffer?: perspectives on sentience, pain, fear and stress’ (2004) 86 Appl. Anim. Behav. Sci. Behaviour Science 226–227. See also Eric A. Salzen ‘Emotion and self-awareness’ (1998) 57 Appl. Anim. Behav. Sci. 300–1. 45 ibid. 46 See for example Reg 338/97 (n 3) art 4 (1)(f). 47 Katy Sowery, ‘Sentient beings and tradable products: The curious constitutional status of animals under union law’ (2018) 55 CMLRev 68–74.
11 is not one of the objectives of the Union in the same way as the objectives listed in articles 2 and 3 TFEU. Having said this, Sowery also states that despite its lower hierarchical position, animal welfare is still unquestionably something that the Union sees as essential to protect from the viewpoint of public interest.48 However, the practical implications of this statement are unclear because of a lack of relevant case law. Nevertheless, Sowery doubts that the Union will push for the prioritization of animal protection and welfare in assessing Member State or Union legislation in the same way as it does for other, more widely recognized principles such as the protection of public health.49 However, all scholars do not share Sowery’s view on the implications of article 13:s hierarchical position, and the subject is discussed more positively by Ilia Pavone, who puts more weight on the article’s implications on the recognition of animal sentience.50 In his article, Pavone discusses the famous case of Inuit Tapiriit Kanatami regarding the hunting of seals.51 In this case, the court stated that the protection of animals as living, sentient beings is a legitimate public interest that can surpass people's cultural needs if they are cruel to animals.52 Pavone thinks that this recognition made by the court implicates that the Union sees animal welfare as a vital interest that can trump certain ‘illegitimate’ human traditions causing unnecessary pain and suffering to animals.53 Furthermore, he believes that article 13 in itself is capable of providing solid legal protection to animals, regardless of whether the Union has signed any additional treaties regarding animal and species protection or not.54 The implications of article 13 are also discussed in an article by Anne Peters, who writes about the cultural and religious restrictions in the article’s formulation.55 Peters says that the influence of the Member States’ will to keep up certain cultural traditions even at the cost of animal welfare has brought certain legal setbacks with it.56 The limitations set in article 13 are an excellent example of this. Peters thinks these setbacks
48 Sowery (n 47) 69. 49 ibid 71. 50 See Ilja Richard Pavone, ‘Is banning enough? the intricacy inherent to marine mammal conservation’ (2019) Ger. Law J. 20(5) 587-613. 51 ibid 602–3. See also Case C‑583/11 Inuit Tapiriit Kanatami v. Parliament, ECLI:EU:C:2013:625. 52 Pavone (n 50) 603. 53 ibid. 54 ibid. 55 Anne Peters, 'Liberté, Égalité, Animalité: Human–Animal Comparisons in Law' (2016) 5(1) Transnatl. Environ. Law 38–9. 56 ibid.
12 can hinder necessary legal proceedings and cause the union to put illegitimate interest ahead of human and animal welfare.57 An important question related to this lifted in Peter’s article is whether all cultural and religious traditions are legitimate or necessary to preserve in the eyes of today’s legal system? As Peters points out, culture and traditions are something that people create, and that can and will change as the society, and our knowledge of the world develops. Not all traditions are worth preserving, and the legislator should acknowledge this when passing new laws.58 An excellent example of a tradition that is no longer justifiable are human and animal sacrifices which are seen as ethically questionable in most developed societies. However, the question of what kind of traditions the Union should try to preserve and whether the legislator can decide that certain traditions or religious practices are not acceptable in Union territory is not easy to answer. Nevertheless, some clarity to this issue was given in Centraal Israëlitisch Consistorie van België presented in the following section.
3.1.3 The implications of Centraal Israëlitisch Consistorie van België (Case C 336/19) Despite the absence of case law and the difficulties in interpreting article 13, it seems that the Union at least partly supports the views presented in Peters’ article. This was shown in a recent case from the Court of Justice of the European Union (CJEU), where the interest balancing between the cultural importance of religious slaughtering and the weight given to the welfare requirements of animals under article 13 TFEU was discussed.59 The case was about a dispute between the Muslim and Jewish communities and the state of Belgium that, in 2019, set up new laws limiting the slaughtering of animals in the way that Halal meat production traditionally requires.60 When an animal is slaughtered for Halal meat, it needs to be drained of its blood whilst still alive. This is a stressful and painful procedure for the animal, and in many countries, the production of Halal meat is, for this reason, strictly regulated.61
57 Peters (n 55) 38–9. 58 ibid. 59 Case C-336/19 Centraal Israëlitisch Consistorie van België and Others v Vlaamse Regering ECLI:EU:C:2020:1031. 60 ibid paras 14–32. 61 See TJ Gibson and others, 'Electroencephalographic Responses of Halothane-Anaesthetised Calves to Slaughter by Ventral-Neck Incision without Prior Stunning' (2009) 57(2) N Z Vet J 77-83. In this study it was shown that calves feel pain for 30 seconds after their throats have been slit according to the religious slaughtering methods.
13 In the case at hand, Belgian law demanded that all animals used in Halal meat production are stunned before their blood is drained. The stun given to the animals was not powerful enough to kill them, but it allowed the blood to be drained whilst the animal was unconscious, thus lessening its suffering in a way that kept it alive.62 The religious communities in Belgium did not accept this form of slaughtering as they thought that the animal being unconscious did not fulfil the requirements of halal slaughtering.63 The court in Centraal Israëlitisch Consistorie van België stated that whilst Member States must respect the fundamental democratic right to freedom of religion, this does not mean that animal welfare must be disregarded entirely. Limiting the freedom of religion to protect the health, morals or the rights and freedoms of others is therefore allowed if it does not disturb the core of the right itself and is limited only to certain aspects of specific religious practices.64 Furthermore, the court considered that animal welfare falls within the requirements set in article 52(1) TFEU, which reads that limitations to fundamental rights and freedoms can be made when they ‘are necessary and genuinely meet objectives of general interest recognized by the European Union’.65 This statement cemented the fact that animal welfare, as presented in article 13 TFEU, is an important objective of general interest to the Union. The case also demonstrated how the balancing of interests between fundamental religious rights and the promotion of animal welfare is done in practice. Centraal Israëlitisch Consistorie van België was the first case to state that promoting animal welfare can justify relatively invasive limitations to the freedom of religion.66 Even though the court did not go as far as Peters in admitting that some religious traditions simply do not fit into the modern and sustainable development of justice, the conclusion was still clearly aligned with what was said earlier by Peters and Pavone, thus supporting the promotion of animal welfare in Union and Member State legislation.
3.2 CITES and the EU regulations CITES is one of the most well-known and, with its 183 parties, widely applicable international instruments regarding wildlife trade. The European Union has implemented CITES as part of its binding legislation through two main regulations: Council Regulation
62 Centraal Israëlitisch Consistorie van België (n 59) para 15. 63 ibid paras 16–19. 64 ibid para 57. 65 ibid paras 58–63. 66 ibid, see the previous cases mentioned in para 63.
14 (EC) No. 338/97 and Commission Regulation (EC) No. 865/2006. Regulation 338/97 functions as a base regulation as it is the one that implements the rules of CITES. Regulation 865/2006, in its turn, complements the base regulation by providing detailed instructions for its practical application. Regulation 338/97 includes four Annexes that list animal and plant species according to the level of protection they need. Generally, the Annexes follow the listing of species set out in the CITES Appendixes, though some differences exist between the two. For example, not all species listed in CITES Appendix I are found in the corresponding Annex (A) of regulation 338/97 and have instead been placed in Annex B. For this thesis, a deeper dive into the Annexes is unnecessary, and the differences between the Appendixes and Annexes will therefore not be addressed in any greater detail. Instead, the following summary aims to give a general idea of the primary contents and functions of the four Annexes within the context of commercial trade. Annex A of regulation 338/97 concerns animals close to extinction, and the species listed in it correspond, with some exceptions, to the ones found in CITES Appendix I. Commercial trade with Annex A-listed species is generally not allowed.67 Annex B lists species that are in danger of becoming threatened with extinction, and the commercial trade with these species is extensively monitored through strict documentation requirements.68 Annex B corresponds, with some exceptions to CITES Appendix II. Annex C corresponds to CITES Appendix III, though again with some exceptions. It lists species that need protection but not to the same extent as species in Annex A and B. Commercial trade with Annex C-listed species is monitored, but the documentation requirements are not as comprehensive as with Annexes A and B.69 The fourth and last Annex, Annex D, does not have a corresponding Appendix in CITES. This Annex lists species imported into the Community ‘in such numbers as to warrant monitoring’.70 Its primary function is to detect early conservation concerns.71 Annex D includes both non-CITES species deemed to require protection through other EU legislation and some species listed in CITES Appendix III.72
67 Reference Guide to the European Union Wildlife Trade Regulations (December 2020) 14. 68 ibid 15. 69 ibid 15–6. 70 ibid 16. 71 ibid. 72 Reg 338/97 (n 3) art 3(4)(a).
15 3.2.1 Differences in the treatment of captive and wild individuals This thesis focuses on the treatment of big cats listed in Annex A of regulation 338/97 such as tigers, leopards, lions, and cheetahs. These species are highly endangered, which is why commercial trade with them is generally not allowed. However, this commercial trade ban does not apply to members of these species born and bred in captivity. Wild- born and captive-born animals are therefore in unequal positions when it comes to the level of legislative protection. The introduction of Annex A-listed species into the EU is generally prohibited. Commercial trade with these animals can happen only for special reasons such as the needs of science or conservation.73 Exporting Annex A-listed species is also highly restricted and, much like import, cannot happen for purely commercial purposes.74 These restrictions are fully applied to trade with wild-born animals. Unlike wild-born individuals, animals born and bred in captivity fall under an exception stated in article 7 (a) of regulation 338/97. This article reads that where specimens listed under Annex A are born and bred in captivity or artificially propagated, they shall instead be treated like Annex B-listed animals when traded to and from the EU. As mentioned in the previous section, commercial trade with Annex B-listed species is monitored but not prohibited and thus, captive-born and bred Annex A-listed animals can be commercially traded to and from the EU. Similar exceptions also apply when it comes to intra EU trade. Article 8(3)(d) of regulation 338/97 states that commercial trade with Annex A-listed animals in the EU is allowed when the animals in question are captive-born and bred. However, intra-EU trade is not entirely unsupervised, and an internal trade certificate is required for commercial trade with these animals.75 An internal trade certificate proves that the animal in question is exempted from the general rule prohibiting the commercial trade of Annex A-listed species and helps identify and track the sale of individual animals.76 For the seller to obtain an internal trade certificate for a live animal, the requirements set in articles 48 and 66 of regulation 865/2006 must be met.77 These requirements include that the animal is
73 Reg 338/97 (n 3) art 4(1)(ii). 74 ibid art 5(2)(c)(i). 75 ibid. 76 See European Commission ‘Permits, Certificates and Notifications’ (ec.europa.eu, 14 September 2020)
16 appropriately ID-marked and that it is born and bred in captivity.78 Furthermore, the intended use of the animal has to be non-commercial despite the nature of the transaction itself.79 The now mentioned requirements do not set a high threshold for commercial trade with live Annex A-listed animals. In practice, it is relatively straightforward for an owner of a captive-born Annex A-listed animal to obtain an internal trade certificate and sell the animal forward to any private actor inside the EU. Considering the aims of EU’s wildlife trade regulations, simplifying the trade of highly endangered species seems counteractive as it does not promote conservation, and its effects on the species in the wild can be dangerous.80 The motivations for why this trade is allowed are discussed more closely in section 3.2.1. To summarize, the only limitation on the commercial trade with captive-born and bred Annex A-listed animals is the requirement for an internal trade certificate. This applies to trade within the Union. When it comes to commercial trade to and from the EU, Annex A-listed captive animals are instead treated as if they belonged to Annex B. In practice, this means that the animals are freed from the general prohibition of commercial trade and can be sold to and from the EU if the transactions are correctly documented. While wild-born Annex A-listed animals are protected by comprehensive trade restrictions in the form of a commercial trade ban, their captive-born and bred counterparts are not as lucky. Loopholes for reducing the effects of the existing restrictions have also been found, and as a result, big cats are often killed at a young age for it to be easier to sell their parts abroad.81
3.2.2 Why do the differences exist? The explanation for the unequal treatment of wild and captive-born Annex A-listed animals lies in the purpose of EU’s wildlife trade rules. Both CITES and the two EU regulations are meant to protect endangered species from harmful human activities that might lead to their extinction.82 This is why actions directly related to wild animal
78 Reg 865/2006 (n 3) art 48. As to help the interpretation of article 48: articles 54 and 55 describe the definition of born and bred in captivity in greater detail. 79 European Commission ‘Permits, Certificates and Notifications’ (ec.europa.eu, 14 September 2020)
17 populations, such as trophy hunting or capturing wild animals for domestic use, are strictly prohibited by the rules of the regulations. However, when it comes to captive- born animals, the legislator sees that commercial trade with them does not affect the wild animal populations to the same extent that activities directly related to wild animals do. It is for this reason that commercial trade with captive-born endangered animals is still allowed in the EU.83 While this reasoning is logical to an extent, research has proven that it is not entirely waterproof. This issue is addressed in the report by WWF and TRAFFIC, where it is stated that commercial trade with captive-born endangered animals risks creating increasing interest and demand for products made of them.84 If this growing demand cannot be met through domestic routes, it might increase the hunting of endangered animals in their natural territories.85 A growing market in products made of big cats would also likely stimulate illegal trade to, from and inside the EU.86 Therefore, the trade of captive-born big cats and other endangered animals might work as a great incentive to continue and expand the trade in wild individuals, putting conservation efforts in danger.87 Unequal treatment of captive-born and wild-born animals can therefore be problematic from a conservation point of view. It is also ethically questionable as it exposes the captive-born individuals to a heightened risk of mistreatment, as will be shown in chapter 5. However, the differential treatment of animals is only one of the reasons why the EU’s wildlife trade legislation does not have the effects it was intended to have, and other key issues with the current legislation will be presented in the upcoming analysis. Section 3.3 will analyze the formulation of the wildlife trade regulations in light of article 13 TFEU focusing on animal dehumanization and the inadequate level of protection that regulations in their current form provide.
3.3 The welfare paradigm and legal language EU’s wildlife trade regulations have a dual nature: they regulate both trade and conservation. The interest gap between on one side the needs of trade law and the other wildlife preservation is well represented in the vocabulary used in the two
83 Reference Guide to the European Union Wildlife Trade Regulations (December 2020) 55. 84 WWF and TRAFFIC (n 1) 99–105. 85 ibid. 86 ibid. 87 ibid 9.
18 regulations. Through a lexical analysis, this section aims to show that how animals are addressed in the regulation texts does not speak for an understanding of them as sentient, living beings but rather shows that animals are regarded almost as goods with feelings. For this analysis, I have chosen to include two distinctive choices of words from Council Regulation (EC) No. 338/97 and Commission Regulation (EC) No. 865/2006. These are the word specimen and the concept of minimizing the risk for injury damage or cruel treatment.
3.3.1 Use of the word specimen The word chosen to describe both live animals and products derived from them in regulation 865/2006 is specimen. No choice of words in law is without a purpose, and thus it is important to ask why this exact word has been chosen to represent the living creatures traded within the scope of this legislation? Oxford dictionary defines a specimen as ‘a single example of something, especially an animal or a plant’.88 The word is mainly used within the scientific field, and its connotations are often not related to, in the lack of a better word, humanity or the idea that the specific specimen is something more than a representant of its class or group. The fact that this word is used to describe live animals, their parts and products made of them, as well as plants and their byproducts, further shows that the legislator has chosen to objectify animals by intentionally comparing them to non-living things. However, a tiger and tiger wine are not the same and to count them as equals in the eyes of EU legislation is, from an ethical point of view, troubling to say the least. The main difference between a live animal and a product derived from an animal is unquestionably the live animal’s ability to feel sensations. An inanimate object, unlike a live animal, will not suffer if it receives mistreatment. Furthermore, it also often only has a value directly tied to its monetary cost, and if the object is destroyed, it can be replaced. The life of an animal, at least in the eyes of moral philosophy, has a different kind of value that stems from the animal's ability to experience emotions and communicate with the world around it in a unique way.89 The death of an animal is permanent, and because
88 Oxford Learner’s Dictionaries ‘Definition of specimen noun from the Oxford Advanced Learner's Dictionary’ (www.oxfordlearnersdictionaries.com, 2021)
19 of its individuality, the animal cannot be replaced by another. If the animal passes because of mistreatment, it will also, unlike a mistreated object, suffer before its death. The legislator’s choice to refer to animals and objects with the same word while also recognizing animal sentience in article 13 TFEU gives mixed signals that can be detrimental to animal welfare. It might be difficult for the official bodies and private persons applying the law to see animals as sentient beings and tradable goods simultaneously, and as a result, the application of the trade rules can become uncertain. The psychological effects of referring to animals and objects with the same word can also cause people to unknowingly treat animals worse than they would if they did not associate them with inanimate objects. In its recent history, the EU has taken increasingly more steps to ensure a better level of animal welfare in all its actions. This can be seen in the two wildlife trade regulations, which, despite the criticism above, are not entirely void of thought for the wellbeing of animals. However, the animal welfare aspects taken up in the regulations only guarantee a minimal level of protection for the animals’ health and safety. This is because how the rules regulating animal welfare are formulated seems to fit the needs of traders better than the animals they are meant to protect. This issue will be discussed in the analysis below.
3.3.2 Minimizing the risk for injury, damage to health or cruel treatment Another formulation repeatedly used in regulation 338/97 is ‘as to minimize the risk of injury, damage to health or cruel treatment’.90 This sentence describes the requirements for the animals’ transport conditions and is of interest for this analysis because of its unspecified form. Why has the legislator chosen to use such a broadly interpretable description of minimal welfare conditions when a more definite form would have left much less room for mistakes? An analysis of this sentence leads to three key observations about its nature and purpose. The first observation regards the broad overarching idea of the protection of animal welfare. Adding a sentence like this to the paragraphs regarding animal transport tells us that animals cannot be treated without any concern for their wellbeing. The second observation is closely related to the first one and can be interpreted from individual words within the sentence. The use of words like injury and cruel treatment says much about
90 This formulation is found from the following articles of regulation 338/97: art 4(1)(f), 5(2)(c)(i), 9(5) and 16(1)(f).
20 the nature of animals and the definition of their well-being. In accordance with article 13, TFEU regulation 338/97, therefore, also sees animals as sentient beings that can experience pain and thus should not be subjected to treatment that causes them suffering. The last observation regards the limitations made within the sentence. While the legislator seems to promote animal welfare and even brings up the notion of sentience, it is noticeable that the paragraph only urges the minimization of risks. This choice of words changes the entire meaning of the paragraph, lessening its potency considerably. In the context of this sentence, the word minimize seems to imply that whilst harm to animals should be avoided, it does not need to be excluded entirely. Instead, harm to animals should only be avoided as much as possible. Using this word leaves much room for interpretation, and as a result, it is uncertain whether the regulation provides adequate protection for the transported animals. Minimizing the risk for different types of harm does not guarantee these animals' safety or humane treatment in the same way a more definite wording would. It only lessens the animals suffering to an undefined degree without defining any strict limits or standards for safe ways of animal transport. This sentence is a typical example of legislative language that follows the welfare paradigm commonly appearing in both Union and Member State legislation.91 What is meant by the welfare paradigm is demonstrated well in the preceding analysis: even though EU’s wildlife trade regulations take animal welfare and even animal sentience into account, the idea of animals as individual living beings is not something that the legislator has chosen to promote. The regulations’ approach to animal welfare treats non- human animals much like living goods, limiting the effectiveness of the animal welfare rules.
3.3.3 An adequate level of protection? The conclusion of the previous analysis seems to prove that the current approach to animal welfare expressed in the wildlife trade regulations provides a certain level of protection for the traded animals. At the same time, it also shows that this approach allows non-human animals to be subjected to both mental and physical suffering if the needs of trade so require. As a counterargument for the latter conclusion, it could be claimed that the regulations do not need to explicitly offer strong protection because other applicable Union legislation ensures the well-being of the animals.
91 For further analysis related to these issues see Kurki (n 7).
21 Article 9(5)(1) of regulation 338/97 states that the transportation of the traded animals needs to be organized in conformity with Community legislation on the protection of animals during transport. The safety of animals during transport to, from and inside the EU is mainly regulated by Council Regulation 1/2005, which clearly states that the transport conditions of the animals need to be arranged so that the safety of the animals is ensured.92 However, this regulation only applies to vertebrate animals and thus gives no protection to invertebrates, which include animals such as mollusks, insects, and crabs.93 Invertebrates make up 97 per cent of the worlds animal species, many of which are even included in the CITES Appendixes.94 Against popular belief, many invertebrates also possess advanced cognitive abilities and are sentient, just like their vertebrate counterparts.95 The weak protection provided by the formulations in regulation 338/97 cannot, therefore, be justified with these animals excluded from the protection of other applicable Union legislation as this would mean denying adequate legal protection from all but three per cent of the worlds animal species. Another claim one could make to defend the formulations in regulation 338/07 is that the protection provided by them is reasonable and adequate because exceptions to the protection of human health are also made in certain situations. Examples of this could be wartime law or laws on testing experimental medicines, which both allow for the health and safety of humans to be compromised.96 However, these cases are carefully considered exceptions that only apply in times of crisis or when the person in question has consented to be subjected to practices that may limit their freedoms and rights. If we look at the legislation set to protect humans and compare it to the rules set to protect animals in the two EU trade regulations, it stands clear that the conditions of the exceptions are not the same. Firstly, non-human animals cannot consent to the risk of emotional or psychological harm and secondly, the situations in which the animals are subjected to these conditions are regularly repeating, not time-restricted one-time
92 Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 OJ L 3 art 3. 93 ibid art 1(1). 94 Rodrigo B Salvador and others, ‘Invertebrates in Science Communication: Confronting Scientists’ Practices and the Public’s Expectations’ (2021) 9 Front. Environ. Sci. 1. 95 See Frans De Waal, Are we smart enough to know how smart animals are? (Granta 2016) 145–152. 96 See for example the Fourth Geneva Convention and Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) for their conditions for limiting human rights.
22 events. Therefore, if similar conditions to the ones in regulation 338/97 were widely applied to the transport of humans, the protection given by this rule would feel wholly insufficient. To exemplify this, let us say that the only legal rule for airlines regarding passenger safety was the following: when transporting customers, the airline should always minimize the risk for their harm and suffering. One does not need to be an expert to realize that a rule like this would allow airlines to put their customers in multitudinous questionable travel situations. Perhaps one airline would see that oxygen masks are not an integral part of minimizing the risks for harm to passengers, while another one could interpret the rule by assuming that as long as there is a seatbelt, it does not need to fulfil any international standards. The outrage caused by the implementation of such a rule would likely be so significant that it would never be possible for it to be implemented, or at the very least, no one would fly with an airline applying such a rule. For these reasons, formulations such as the one in regulation 338/97 cannot exist in legislation regarding the transport of humans. Because we have the ability to choose our means of transport, airlines are required to do regular and extensive safety checks on their machinery. The laws set to protect airline passengers from physical, material, and emotional damage also provide high-level protection in all situations where passengers could be compromised in some way.97 If a rule like this would not give adequate protection to our health and safety, it seems reasonable to question why we should think that it gives it to non-human animals. Non- human animals lack the verbal abilities needed to communicate their wishes or feelings to us, which makes them vulnerable and speaks for renewed wildlife trade legislation that provides them with effective protection. If the goal of the rules in regulation 338/97 was to optimize the wellbeing of the traded animals, more definite wordings such as ‘the animals cannot suffer any physical or psychological harm during transport’ should replace the current wordings.
97 See for example the 2021 Passenger Rights Fact Sheet of the European Union; Regulation (EC) No 1592/2002 of the European Parliament and of the Council of 15 July 2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency OJ L 240; Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC OJ L 79.
23 3.4 Summary Based on what has been said in this chapter, the position of endangered animals in the EU seems uncertain. Whilst the Union has, as seen in article 13 TFEU and the related case of Centraal Israëlitisch Consistorie van België taken significant steps towards bettering the position of animals in its Member States, the interpretation of the practical importance of these steps remains unclear. The Unions interpretation of animal welfare appears to be incomplete and whilst, the current definition functions as a good starting point for welfare evaluation, new, more inclusive methods for measuring cross-species welfare should be allowed to gain ground.98 One such method, called self-fulfillment account, has already gotten attention among animal welfare experts. This method allows for individual factors such as the animal’s desires and aspirations to be included in the definition of welfare. Approaching animal welfare from a more individualistic viewpoint would allow us to form a much more realistic picture of how the individual animal is feeling and, based on this, to decide whether its welfare needs are being fulfilled or not.99 Widening the methods of measuring welfare could, however, lead to difficulties with interest balancing. Finding a balance between human and animal interests is a delicate task that the EU does not seem to want to take sides in, despite recognizing that the welfare of animals may come first if the interests of humans are not entirely set aside by it. As a result of this EU’s wildlife trade legislation is filled with mixed messages as it tries to promote animal welfare and accommodate trade needs simultaneously. The regulations’ formulation issues strike at the core of this issue, proving that the current legislative protection is unsatisfactory. Combined with the Union’s restricted interpretation of animal welfare, these limitations on the effectiveness of the regulation actively hinder the Unions efforts to promote animal welfare. For these reasons, it seems evident that the protection endangered animals receive at Union level is insufficient in its current form. Building on the information presented in this section, the following chapter will provide a more profound analysis of the nature of EU’s wildlife trade regulations. The purpose of this analysis is to take a deeper look into anthropocentrism by discussing the drivers behind wildlife trade legislation.
98 See section 3.1. 99 Woodhall Andrew and Garmendia da Trindade Gabriel, Ethical and Political Approaches to Nonhuman Animal Issues (Palgrave macmillan, 2017) 358–360.
24 4 Anthropocentrism in the EU regulations
Anthropocentrism or human-centeredness is something that, on some level, is naturally present in all legal systems. While anthropocentrism is not always a bad thing, many animal law experts believe that legislation regarding the wellbeing of animals should not have a human-centered perspective.100 This is because, generally, anthropocentric views on legislation tend to value animals based on their use for humans and therefore offer only a limited outlook on the concept of animal welfare.101 Visa Kurki, an animal law expert from Helsinki University, explains that conservation legislation is often seen as non-anthropocentric because it values non-human animals as an integral part of nature, offering them protection for reasons of biodiversity and the general welfare of nature.102 Therefore, even if a conservation law does not directly protect the interest of an individual animal, it still provides it with indirect protection by taking care of the species’ welfare.103 From this perspective, EU’s wildlife trade regulations do not seem anthropocentric as their official aim is ‘to protect species of wild fauna and flora and to guarantee their conservation by regulating trade therein’.104 While this logic is not entirely broken, classifying legislation purely on the basis of its formulation is risky as even conservation laws can have underlying anthropocentric motivators.105 The wording of regulation 338/97 indicates that its primary objective should be the conservation of species.106 However, EU’s wildlife trade legislation has a two- dimensional nature, and it is not to be forgotten that the two regulations are also a part of trade law. Historically, the drivers behind animal trade legislation have not been related to the interests of the animals, and the primary motivator of conservation legislation has often been the need for humans to preserve a suitable environment to live and hunt in.107 When looking at the EU regulations, it is therefore important to ask not only how the animals are protected, but also why this protection is needed according to the legislator?
100 See for example Wahlberg (n 6). 101 Kurki (n 7) 848. 102 Kurki (n 7) 850–2. 103 ibid. 104 Reg 338/97 (n 3) art 1(1). 105 Kurki (n 7) 853. 106 Reg 338/97 (n 3) art 1. 107 See the analysis in chapter 2.
25 4.1 The nature of trade law The modern drivers of the commercial trade on endangered animals vary greatly, ranging from socio-economic and cultural reasons to the strive towards pure monetary gain.108 Primary commodities produced of the animals and animal parts traded within this market include medicinal products, clothing, design items and food.109 Despite the wide range of drivers, a common denominator to all these commodities is their purpose of satisfying human needs. In some parts of the world, commercial trade of endangered animals is a condition for living and using products made of endangered animals is the only way to get food or medicine.110 However, in most wealthy countries, wild animal trade exists for the sole purpose of culture, profit and pleasure. It is, therefore, safe to say that most of the trade to, from or inside the EU does not relate to societal necessities such as mainstream healthcare or food production.111 Knowing that the Union has put effort into promoting animal well-being and species protection and that residents of EU Member States generally do not need products made of endangered animals to stay alive, it is reasonable to question why EU law allows commercial trade with these animals to begin with. For trade to exist, there needs to be a buyer and a seller who exchange goods within a given market. The basic requirements for trade are, therefore, demand and supply. If one of these is missing, there is no market and therefore no trade. Trade law aims to satisfy the needs of traders by ensuring that markets have common rules that allow the existence of well-functioning legal commerce and effectively limit illegal trading activities.112 Trade legislation is therefore always there primarily to ease and secure the functions and the existence of given markets, even if it includes limitations to the tradable products and trade methods. This applies even in the case of trade with endangered animals. One could, at first glance, state that the current Union legislation is mainly restrictive and does not function as a tool of convenience for the traders or the buyers. However, if the rules were there primarily to prohibit trade with endangered animals, they would likely not allow for commercial trade exceptions when it comes to animals born in captivity. Therefore, these rules seem to only limit trade to an extent necessary for the further survival of the
108 Sara Ofield, The trade in wildlife Regulation for conservation (Earthscan Publications, 2003) 17. 109 ibid 11, 17. 110 ibid 4–6. 111 Rosaleen Duffy, ‘EU trade policy and the wildlife trade’ (2016) 9. 112 This is demonstrated well in the Union’s aims regarding the internal market and its functioning found in Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ 1 306/01art 2(2).
26 endangered species and aim to interfere with free trade as little as possible. If the goal of these rules was to help endangered species thrive and not just survive, the most logical solution would be to prohibit commercial trade on endangered animals altogether. As stated in the first paragraph, the Western drivers of trade with endangered animals are not related to daily necessities such as food or medicine. Furthermore, today’s technology allows for alternative production methods for most products derived from the bodies of these animals. The need to keep up the commercial forms of this trade seems to, therefore, be substantially based on the material wants of people. The nature of the drivers behind this trade speaks for the anthropocentric nature of EU’s wildlife trade regulations. Moreover, the lack of legitimate reasons for the existence of this trade and the fact that it is still allowed to continue despite this show that trade legislation is always there primarily to protect human interests.
5 Problematic trade
The previous chapter has aimed to explain why Union legislation regarding the trade of endangered animals has an anthropocentric character. The upcoming analysis expands on that discussion by examining the drawbacks of a human-centered approach from the perspective of big cats. The analysis provided in this chapter is practical and focuses on the real-life consequences of anthropocentrism. Moral questions related to these consequences will be taken up later.113 The upcoming analysis is based on the information given in the two recent reports from Four Paws, WWF and TRAFFIC, which showed severe issues in the registration and control of captive-born tigers.
5.1 The status of EU’s big cats The problems stemming from the anthropocentric nature of EU’s wildlife trade legislation are reflected well in the alarming situation of the Union’s big cats. Whilst the amount of legal protection for wild fauna and flora is at an all-time high, the current rules are still lacking in many ways. The most visible example of this is the intra-species inequality presented in the previous chapters because it puts the physical and psychological wellbeing of EU’s big cats in danger. Moreover, counteractively to the aim of regulation
113 See chapter 6.
27 338/97, it also seems to encourage the trade with endangered animals in the wild and captivity. For a long time, the exact situation of EU’s big cats has been unknown due to a lack of informative sources. However, in 2019 and 2020, two reports, including wide-range studies commissioned by Four Paws, WWF and TRAFFIC, dug deeper into this issue. All three NGOs behind the reports are considered reputable international organizations for animal and environmental protection, as shown by their frequent collaborations with governments and varying organizations. Four Paws works continuously with governments to end harmful animal practices and aims to do change on a Union level regarding the trade and transport of animals.114 In the same way as Four Paws, WWF also collaborates with governments, humanitarian organizations, and private funders worldwide, running comprehensive projects within areas of species and environmental protection.115 Whilst equally well know, TRAFFIC differs from the other organizations in that it focuses only on wildlife trade. TRAFFIC was founded following the creation of CITES, and it continuously works to help CITES members in their decision making.116 The results of the studies were alarming, showing that the commercial trade of captive- born tigers is not only thriving but has also led to an uncontrollable and unsustainable situation for the animals in the EU. Due to these organizations being internationally established, the 2019 and 2020 reports gained a large amount of attention, causing a discussion on the effectiveness of EU’s wildlife trade regulations.
5.1.1 The keeping of live tigers In the study carried out by Four Paws, information requests regarding the amount and control of captive tigers were sent to all 28 EU Member States and eight neighboring countries.117 Unfortunately, the number of countries responding to these requests was deficient due to perhaps a lack of interest in the subject or the will to keep certain issues out of daylight. Only 13 Member States and four neighboring countries answered the
114 See for example Four Paws 2019 Annual Report. 115 WWF ‘What we do’ (www.wwf.org.uk)
28 request, leaving the report’s results partially incomplete.118 However, the information gathered from the countries that responded showed severe inconsistencies and safety breaches in national control systems. These results were also later confirmed by the WWF and TRAFFIC study. Both studies reported Member State legislation allowing the keeping of live tigers with the help of descriptive charts. These charts showed that a surprisingly large part of Member States still allows the private ownership and circus use of tigers. All of the five by population largest EU countries (Germany, France, Italy, Spain and Poland) allowed at least one of these uses, and out of these five, Italy and Poland were the only ones that did not allow both.119 These results were surprising because the breeding and commercial trade with captive tigers is strongly discouraged by a CITES recommendation published in 2007.120 Considering that the EU has shown continuous support to the CITES by implementing the agreement as a part of its binding legislation, it seems both illogical and counteractive for the Union to allow national law in its Member States to go against it in this way. The descriptive chart below visualizes the legislative situation in all EU Member States, including the UK, which was still in the Union at the moment of data collection. It lists countries according to their legal forms of keeping tigers in captivity while simultaneously showing the percentage that each category for legal keeping holds in the EU. The data for the chart is retrieved from information gathered in the two reports.121 From this chart, it is seen that even though 50 per cent of Member States do not allow the ownership of tigers in circuses or private facilities, another 50 per cent of them still do allow at least one of these ownership forms.
118 Four Paws (n 1) 21. 119 Four Paws (n 1) 7. 120CITES COP14 Decision 14.69 against tiger farming and breeding tigers for trade in their parts and products. See also WWF and TRAFFIC (n 1) 15. 121 Four Paws (n 1) 6–7. See also WWF and TRAFFIC (n 1) 57.
29
Another more political aspect of this issue is that the opinions of the Union Member States’ citizens do not match the current legislative situation. This was also a central topic of discussion in the two reports, where it was concluded that an overwhelming majority of EU citizens opposed the commercial trade of captive-bred tigers and wanted to either prohibit it in its entirety or thought that all commercial trade forms should be banned when it comes to endangered animals and their parts.122 Four Paws reported that in Austria, Czech Republic, France, Germany, The Netherlands, Spain, and the United Kingdom, 47 per cent of the respondent supported a total commercial trade ban, and 44 per cent supported a ban for all commercial trade that does not relate to species conservation done by legitimate actors.123 Only four per cent of the respondents thought that the trade should be allowed, and the remaining five per cent did not know their answer.124 What is remarkable about the results of this survey is that despite its large scope, the results were widely unified. While it is not possible to explicitly state that the non-participating Member States’ citizens share a similar opinion about the EU’s wildlife trade approach, it is unquestionable that the survey results say something about the widespread ideals inside the Union. Regardless of this, the EU continues to allow the breeding and commercial trade with captive-born big cats in its Member States. The Union is actively disregarding CITES
122 Four Paws (n 1) 23. 123 ibid. 124 ibid.
30 recommendations, and by doing so, allows for a harmful trade to keep growing inside its territory. As can be observed from the preceding analysis, the Union’s acts do not reflect the opinions of its citizens. Considering that the Union should represent its people, these legislative choices can also present a democratic issue.
5.1.2 Defective registration and illegal trade In addition to allowing the breeding and commercial trade with captive tigers against decision 14.69, the reports also brought light upon inconsistency issues in controlling the numbers of these animals.125 Although officially, the registration of captive tigers is mandatory, either via the CITES procedures or national registration authorities, in reality, only a fracture of these animals is registered into the national or EU systems.126 The reported numbers of captive tigers gathered from the information request did, in many cases, not correspond to the numbers of animals in CITES reports.127 These findings were supported by the information I gathered from an interview conducted with LAV:s Andrea Cassini, who works as the organization’s campaign manager for issues regarding the trade of endangered animals.128 LAV is an Italian NGO that works with national animal welfare issues by proposing legislative changes and spreading awareness on animal issues.129 It is also a member of the Eurogroup for Animals, a sizeable pan- European animal advocacy organization that promotes animal welfare across the EU.130 Cassini stated that out of the approximately 168 captive tigers kept in circuses and similar facilities in Italy, only 68 had been officially registered according to the CITES rules. The fact that only two-thirds of these animals are correctly registered according to the applicable rules means that it is almost impossible to supervise the treatment and usage of non-registered animals. However, it is not only Italy that suffers from these issues, and similar registration deficiencies have been reported, for example, in France, Spain and Germany.131 CITES recommendation Res. Conf. 12.5 (Rev. CoP18) encourages its members to address the issues related to the illegal tiger trade by strengthening their legislative
125 Four Paws (n 1) 21–2. 126 ibid. See also WWF and TRAFFIC (n 1) 103, 109. 127 Four Paws (n 1) 21–22. 128 Andrea Cassini: Interview via Zoom on the 21 June 2021. 129 LAV ‘Who we are’ (www.lav.it 2013) < https://www.lav.it/en/who-we-are> accessed 1 August 2021. 130 Eurogroup for Animals ‘Who we are’ (www.eurogroupforanimals.org) < https://www.eurogroupforanimals.org/who-we-are> accessed 1 August 2021. 131 Four Paws (n 1) 21–21.
31 procedures and penalty systems.132 This recommendation was intended to effectively restrict global tiger trade by ensuring that the captive tigers in CITES member states do not end up in the illegal markets.133 Nevertheless, this is precisely what the defective control of captive tigers leads to, as many animals are sold illegally either as pets or for their parts.134 Many of the captive tigers born in the EU are transported outside of the Union, where they are used in traditional medicine and luxury products. Cassini states that the animals’ travel there is often all but safe, and severe physical injuries are not uncommon. Animal transports that do not fulfill any of the legislative requirements set to protect the welfare of the animals are suspected of passing through Member States’ borders repeatedly. Although regular checks on the animals’ travel conditions are required, Cassini suspects that, in reality, as long as the transporter has the correct paperwork, these checks are often overlooked. This can be the case even when the legal transports lack legitimate end destinations, as shown in the case below.
5.1.3 The case of the ten tigers A concrete example of the helpless position captive-born big cats are in because of the lack of adequate legislative protection is the case of the ten transported tigers, mentioned briefly in the introduction for this essay.135 This case is an excellent real-life representation of how the system has failed the big cats of the EU and why it is necessary to find better working solutions for controlling the treatment of the traded animals. Unfortunately, this case is still ongoing, and the official information about it is not yet available. However, LAV is a part in this case which is why it was possible to gather information from my interview with Andrea Cassini.136 All of the information presented in this section is therefore based on this interview. The case is also shortly discussed in the Four Paws report, where additional information can be found.137 The ten tigers in this case were headed from Italy to Russia, travelling through the borders of multiple Union Member States. The owner of the tigers (the transporter) was
132 WWF and TRAFFIC (n 1) 15. See also CITES Resolution Res. Conf. 12.5 (Rev. CoP18) Conservation of and trade in tigers and other Appendix-I Asian big cat species. 133 ibid. 134 This is illustrated by the number of tiger commodities seized by EU Member States reported in the reported in WWF and TRAFFIC (n 1) 47. 135 Four Paws (n 1) 13. 136 Andrea Cassini: Interview via Zoom on the 21 June 2021. 137 ibid.
32 a famous Italian circus family that has actively participated in the trade of endangered animals. After multiple days of travelling, the Polish officials stopped the transport at the Polish border as the transporter lacked a new permit that had become a necessary transport document only two months prior to these events. Otherwise, the transporter was carrying all the correct documentation, and the travel destination, a Russian zoo, was accepted by the officials giving out transport permits. Because of the missing documents, the Polish officials decided to check the animals and the sight that awaited them was not pleasant. The tigers were in bad condition, lacking all the necessities of life. The transport space had no air conditioner, and the animals' cages were far too small, not allowing the animals to move around in any way. Furthermore, there was no water or food, and even if there had been some, it would not have been possible to offer it to the animals due to their tiny cages. One of the animals was found deceased in its cage due to the flagrant neglect it had experienced. The poor living conditions of the tigers indicated that their health and safety were not a priority of the transporters. This might seem illogical as one might think that the transporter would benefit from the animals, at the very least, being alive. Surprisingly Cassini states that this is often not the case because, on the international markets, dead tigers are worth more than live ones. The body of a tiger can be used for many different products that, combined, bring in much more money than the selling of a live animal. For this reason, Cassini believes that the animals were going to be sold as carcasses when they finally arrived in Russia, and that is why their living conditions did not matter to the transporter. When the case of the ten tigers hit the news, many wondered how something like this could happen. How was it possible for the transporters to pass through the check-up points in multiple Union Member States without anyone looking into the cages or noticing that something was not right? Furthermore, it was also found out that the approved destination the animals were supposed to be placed in was closed by Russian officials and had not existed in two years. Instead of a zoo, the place was now a different privately own business that allegedly was known for trafficking endangered animals From Russia to countries outside of Europe. Officially this is not a case of trafficking as the transporter was in possession of the legal permits to transport and sell the animals. Therefore, when LAV decided to act against the transporter, the accusations regarded a breach of transport conditions. Cassini tells me that the process of trying to take legal action against a powerful opponent proved
33 to be more difficult than thought. A week after LAV had filed their complaint about the transporter, the Italian officials decided that there was nothing to investigate and dismissed the case. According to Cassini, the Italian handling times of legislative matters do not allow a case to be dismissed this quickly. LAV disputed the questionable decision and is still waiting for an answer from the Italian authorities, but according to Cassini, it is likely that the officials have a reason for not wanting to investigate further. Fortunately, it is not only the Italian authorities investigating the case, and the Polish authorities have also commenced their own procedures against the transporter. Regardless of why the investigation of this matter is dragging, it is clear that the ones suffering from it are the animals themselves. Five of the nine living tigers are situated in a sanctuary in Spain, whilst four are in a zoo in Poland, waiting to get transferred elsewhere to get medical care and a permanent place to live. Because the matter is still pending and the animals are not officially confiscated from the transporter, the temporary caretakers cannot give the animals more intrusive medical care such as spaying or neutering.138 This kind of primary healthcare would be essential for the animals, but it cannot be done without the owner’s permission. Nobody knows how long the animals must wait for the case to be resolved, but Cassini estimates that it will take at least two to three years at the hands of the Polish authority. When it comes to the Italian officials, it is unclear whether the case will continue forward or face a similar abrupt end as the first procedure. While this matter slowly moves forward, one can only imagine how many other animals in similar conditions move through Member State territories daily without anyone caring. A quick resolution to this case could bring more awareness to the issues of the current trade legislation and force Member States to put more effort into their control measures. Cassini expressed similar concerns during our interview and hoped for a change in the enforcement and effectiveness of EU’s legislation regarding animal welfare and animal trade. If nothing else, this case has, at the very least, shown that the EU’s current approach to animal trade is not functional and that maybe it is time to rethink the construction of the Union’s outlook on animal welfare.
138 Since the animals are intended to be placed in a sanctuary and no breeding with them is planned, spaying and neutering is recommended as it would improve the quality of life for them significantly. Generally, captive born tigers that are not born and bred in a legitimized zoo cannot be used for conservation purposes as their genetical lineage is not suited for it.
34 6 Finding a new approach
As established in the previous chapters, the Union’s approach to the issues of wildlife trade legislation does not seem adequate from the perspectives of either animal welfare or species conservation. However, merely recognizing that problems exist is not enough, and to achieve real change, it is also necessary to present potential solutions. This chapter aims to find a plausible solution to the issues of wildlife trade legislation from the animal rights approach. The first part of the chapter lays down the foundation for the animal rights discussion by explaining the basics of animal cognition. It will also shortly describe how the current knowledge of the animal mind can speak for a legal change in the rules applying to animal trade. The second part of the chapter discusses the idea of seeing animals as owners of legal rights. The concept of legal personhood is discussed from the perspective of different legal philosophers, and the introduction of legal animal rights is taken up as a plausible solution to the issues with EU’s animal trade. Here, the analysis will return to the preceding discussion on animal cognition, using the presented psychological research as argumentative support. Lastly, the analysis will assess the realistic possibilities to the full- scale acceptance of animals as rights holders, bearing in mind both the practical and theoretical limitations that apply to it.
6.1 Current knowledge of animal cognition Cognition is a term that describes many of the different activities related to our consciousness. Cognition is defined in various ways within different fields of science, but within psychology, it is often used to describe the mental processes related to receiving, processing, and storing information.139 This definition will also be the starting point in the upcoming discussion as psychology often plays a vital role in legal, philosophical research. Intelligence and emotions are the parts of animal cognition that commonly get brought up in the discussion on animal rights, and many legal scholars disagree about the importance of cognitive abilities when defining legal personhood. Many are uncertain whether cognitive differences between species allow us to treat animals as beings lesser than us. It is also debatable whether the current knowledge of animal cognition and its
139 Kristin Andrews and Jacob Beck, The Routledge Handbook of Philosophy of Animal Minds (Routledge 2018) 410–11.
35 testing methods is on a level that allows us to disregard other species as our equals when it comes to mental capability.140 With this background in mind, this analysis tries to find an answer to the following questions: are our cognitive abilities indeed as superior to other animals as we think or do similar abilities present themselves differently in different species? What if the cognitive traits commonly thought to be a part of humanity are universal across the animal kingdom, would this call for a change in how our legislation sees animals? These questions will be analyzed from the perspectives of wildlife trade legislation and animal welfare.
6.1.1 Language, intellect and how to test it Language plays a significant role in the way humans process information, and thus it is often seen as a factor that intellectually separates us from other animals. Language is something that many connect directly to intelligence, assuming that a species lacking clear verbal ways of communication must also have low mental capacity.141 It is general knowledge that most animals communicate with each other. This can happen through sing-language, vocalizations, scent-signaling or even the interpretation of intricate bodily movements. Some animals, such as parrots, have even been proven to be capable of learning human language and correctly connect human terms to objects.142 Similarly, some apes can associate different objects with signals in sign language. This is likely because humans and other primates have very similar ways of bodily communication and share many non-verbal gestures.143 Nevertheless, the flexibility and wide vocabulary range of human language is still something that has seemed unique to our species for a long time. As described by De Waal, the difference in human and non-human languages lies most likely in the ability to describe past and future events and the fact that we do not need to perceive an event or an emotion ourselves to describe it to others.144 But what bearing does the level of sophistication have when it comes to verbal communication? Does our use of language make us more intelligent than other species? Not necessarily.
140 See section 6.1.1. 141 Frans De Waal, Are we smart enough to know how smart animals are? (Granta 2016) 98–104. 142 ibid 102–4. 143 Gisela Håkansson and Jennie Westander, Communication in Humans and Other Animals, (John Benjamins Publishing Company 2013) 122–3, 130–2. 144 De Waal (n 141) 106–107.
36 An integral part of the way humans think and see the world is our ability to form concepts, meaning firstly that we can separate a cat from a dog and secondly that we can recognize all cats to be cats, even without the exclusion criteria.145 Researchers recognize that the creation of mental concepts and other higher-level reasoning is facilitated by verbal language.146 It is, however, also acknowledged that the ability to form concepts is not dependent on the existence of verbal communication and that many animals form concepts with the help of other sensory experiences such as scent.147 The ability to form concepts furthermore allows these animals to act in ways that demonstrate mental capacities similar to humans: De Waal mentions in his book that, despite the lack of sophisticated verbal communication, it has been proven that many animal species are very much capable of understanding developed concepts such as morality.148 They are also capable of developing cultural habits and passing them on to their young, as well as connecting and forming complex relations with other members of their species.149 These things are all essential components of the type of behavior that we see as intelligent and integral to humanity. Yet, animals lacking the same abilities in expressing themselves have been capable of building very similar societal structures to us even without verbal communication. Furthermore, even if one still persisted in arguing that a sophisticated verbal language is a requirement for higher intellect and that humans are the only animals that possess this ability, recent findings in the field of animal language research can soon prove the contrary. New technological developments in machine learning have allowed scientists to dive deeper into the world of communication and current projects regarding sperm whales suggest that complex, grammatical language might not be unique to us after all.150 Sperm whales seem to have created a highly developed click language that they actively use to communicate with each other. The findings on these whales suggest that with the help of newer technology, we could, in the future, find that many animals currently though not to have a language, communicate with each other on a much more advanced level than previously thought.
145 Andrews and Beck (n 139) 94–5. 146 ibid 105. 147 ibid 94–5. 148 De Waal (n 141) 107. 149 ibid. 150 See Peter C Bermant and others, ‘Deep Machine Learning Techniques for the Detection and Classification of Sperm Whale Bioacoustics' Sci. Rep. (2019) 9(1) 12588.
37 Another recognized issue within the research of animal intellect is that, in addition to the anthropocentric views we have about the concept of intellect, the methods used to measure intellectual capacity are often badly suited to be used in non-human species.151 Tactics of conditioned learning often characterize the situations in which animal cognition is tested. A famous example of this testing method is the case of Pavlov’s dogs. Ivan Pavlov was a Russian psychologist who researched the learning abilities of dogs with the help of different stimuli. Pavlov taught the dogs positive association by making them combine auditory stimuli to food. He also studied negative association by making the animals connect generally neutral stimuli to electrical shocks and, by doing so, created a fear reaction.152 Testing methods based on conditioning are relatively primitive when compared to the psychological testing of humans. Methods based on conditioning are therefore ill-suited for the testing of animals with higher cognitive functions. The reason for this is explained well by Kristin Andrews and Jacob Beck, who write about dogs' cognitive abilities. According to Andrews and Beck, dogs are animals that ‘do not just react to proximal and physiological stimuli’.153 Similarly to humans, dogs can combine their knowledge of what something is with their beliefs of how it will behave, thus creating intelligent animal knowledge-how.154 This knowledge-how then allows them to create expectations of how different events will unfold, how particular objects usually function, and how the animal itself should act considering this information.155 The methods of conditional learning are not intricate enough to measure this kind of intelligent behavior and are better suited to measuring singular learning domains.156 Nevertheless, they continue to be one of the primary ways of testing animal intelligence. Other frequently used tactics in the testing of animal intelligence are methods based on distress. Memory testing on mice is an example of this, taken up in De Waal’s book, where it is explained that to test their memory, mice are thrown into a maze filled with water from which they then have to find their way out.157 De Waal criticizes these types
151 De Waal (n 141) 34–41. 152 Frances K McSweeney and Eric S Murphy, The Wiley Blackwell Handbook of Operant and Classical Conditioning (John Wiley & Sons, Incorporated 2014) 98, 170. 153 Andrews and beck (n 139) 93. 154 ibid 92. 155 ibid 92–93. 156 Louis D. Matzel, Christopher Wass, and Stefan Kolata, ‘Individual Differences in Animal Intelligence: Learning, Reasoning, Selective Attention and Inter-Species Conservation of a Cognitive Trait’ (2011) 24 Int. J. Comp. Psychol. 36. 157 De Waal (n 141) 35.
38 of methods for their lack of effectiveness. According to him, a state of distress is never optimal for observing cognitive abilities as most animals are prone to make rushed decisions under stressful situations.158 The last essential point regarding the testing of animal cognition is that not all species can be tested in the same way, and disregarding the individual abilities of animals, such as weakened or heightened sensory abilities, will lead to skewed test results.159 Therefore, proper testing of animal intelligence requires researchers to understand the animals' behavioral traits, which can then be used to find testing methods that inspire the animals to use their brains without being forced to do so by using fear or distress as a motivator.160 There is no question that the current mainstream methods for testing animal cognition are outdated and that our concept of intelligence is inherently human-focused. In the light of this information, it seems questionable whether we can base our views on how to treat animals on the assumption that the lack of perceivable verbal communication indicates low mental capacity. But how about other aspects of animal cognition? Are non-human animals emotionally deficient, and what role does or should sentience play in the formulation of conservation legislation? Is it possible to provide animals with different levels of protection for their welfare based on their ability to experience feelings and emotions?
6.1.2 The animal mind – beyond pain and suffering As shown earlier in this thesis, the legal interpretation of animal sentience is often restricted to the notion that animals can feel pain.161 It is also for this reason that the current wildlife trade legislation focuses only on the minimization of pain and suffering without considering any other aspects of emotion.162 At the same time, current knowledge of animal consciousness suggests that animal sentience is much more than physical and psychological pain. It is, therefore, necessary to ask whether the current understanding of animal sentience is enough to cover the needs of the animals when it is applied to legislation that directly regulates the welfare of live animals. Consciousness as a universal term is hard to define, but within scientific research, it is often described as the ability to acknowledge yourself and your surroundings in
158 De Waal (n 141) 35. 159 See the discussion about the cognitive testing of mollusks with glass jars in De Waal (n 141) 145–152. 160 ibid 20–2. 161 See section 3.1.1. 162 See section 3.3.2.
39 combination with each other, in a way that allows you to have different experiences, assumptions and thoughts about yourself and the world around you.163 Previously it was widely believed that humans are the only species with consciousness.164 Researchers believed that non-human animals could only feel emotions related to certain stimuli such as pain from physical abuse or stress connected to situations where the animal knew that something scary had previously happened. Notwithstanding, this view was challenged as early as 1920 when the research of brain activities in animals started developing.165 At that time, it was realized that certain animal species could make somewhat informed decisions instead of only reacting to immediate stimuli. Further studies on animal consciousness suggested that this type of thinking was linked to specific, relatively newly developed brain structures. Following these results, the next significant assumption became that one must have a neocortex to possess consciousness.166 Regardless of its significance, this new finding did not change the researchers’ minds about the superiority of the human mind. It also limited the possession of consciousness to mammals, as they are the only animals with developed neocortices.167 Many researchers thought that these findings were unsatisfactory, and after further efforts in consciousness research, it was, in 2012, officially declared that animals that do not possess a neocortex can also have consciousness. The declaration announced that animals without a neocortex, such as birds, seem to display strikingly similar behavioral and psychological abilities to those previously only connected to the mammal mind.168 Therefore, it is clear that consciousness is something most animals share and that emotions and experiences linked to it are not limited or defined by cortical structures.169 The implications of the 2012 declaration are paramount, not only when it comes to research in animal behavior but also regarding the issue of defining societal rules. If non- human animals can experience emotions and have expectations of the world in ways comparable to humans, it seems questionable to treat them differently than us when it comes to legislative requirements for health, safety, and welfare. It is, of course, true that different animals have different needs and that a human and a cat will likely not share
163 Andrews and Beck (n 139) 220–5. See also The Cambridge Declaration on Consciousness. 164 De Waal (n 141) 233–4. 165 ibid 126–7. 166 Neocortex is a part of the cerebral cortex that handles higher level mental processes such as language. 167 Robert Hine, A Dictionary of Biology (4th edn, Oxford University Press 2019) ‘neocortex’. 168 The Cambridge Declaration on Consciousness. 169 ibid.
40 the same emotional experience even if the activity they partake in is the same. I, for example, would not enjoy eating my friends' food remains from the floor, whilst my cat would most definitely see it as a treat. While the example might be a bit silly, it illustrates an important point for why the differences between species are essential to notice when making legislative decisions regarding animal welfare. The definition of good welfare is not the same for every species or even every individual animal, and thus having the same conditions does not imply equal levels of welfare. At the same time, it is also essential to recognize that in the same way as us, a non-human animal may miss their friends, feel anger or be terrified and that the intensity of these feelings is not lessened by the fact that the animal is not human. Furthermore, it is vital to realize that the animal may have these emotions even if all the formal requirements for its welfare are fulfilled. Consequently, the way to effective recognition of welfare in animal-related legislation has a lot to do with recognizing animals' individual capabilities and personalities, including the range of emotions they might experience in specific situations.
6.2 Legal personhood for animals, yes, or no? The discussion on legal rights ownership for animals provokes a lot of different emotions. Some scholars see that the idea of granting such rights to non-human beings is absurd because the concept of rights is intrinsically connected with obligations and that, therefore, beings not capable of having obligations also cannot obtain rights.170 It has also been suggested that legal animal rights might threaten vulnerable groups of humans, imposing possibilities for their mistreatment and lessening their value as individuals.171 Further objections to the idea of animals’ legal personhood revolve around the difficulties in defining which animals deserve or do not deserve rights and the limitations these rights would bring with them concerning the usage of animal products.172 Contrary to this, the defenders of animal rights often think that granting non-human beings fundamental legal protection is the only rational way for a modern society to develop. They also believe that legal rights of non-human animals are only a question of
170 Tom Regan, Animal Rights, Human Wrongs: An Introduction to Moral Philosophy (Rowman & Littlefield 2003) 102. 171 Wills J, ‘Animal rights, legal personhood and cognitive capacity: addressing ‘levelling-down’ concerns’ (2020) 11(2) J. Hum. Rights Environ. 205–7. 172 See the discussion in sections 6.2.5 and 6.3.1.
41 time. The arguments from this side are primarily based on modern animal science and theories of moral philosophy. Many well-known philosophers such as Peter Singer and Tom Regan, who can be seen as pioneers for the philosophical animal rights discussion, have also supported the animal rights approach.173 More recently, this discussion has taken some new directions, which has led to it no longer being limited to the simple arguments of whether animals and humans are alike or not. These new perspectives, along with the classical questions of the animal rights approach, will be discussed in the analysis below. But why is the question of animal rights relevant to the topic of this thesis, the trade of endangered animals? The simple answer is that granting animals full legal rights would help solve a large amount of the issues related to this trade. This would, however, be a wide-scale solution that would require a total change of direction on the current views of legal personhood, and thus, its implementation might be problematic from a purely practical point of view. Therefore, in addition to presenting the animal rights movement and its ideas, the following analysis will also discuss the practical implications of their implementation. This section aims to present baseline structures for solving the issues related to the current form and implementation of EU’s wildlife trade regulations.
6.2.1 Defining rights To start the discussion on animal rights, it is first necessary to make some general remarks on what rights are within the context of this analysis. The concept of a right is relatively abstract and has been the subject of many arguments. Two major schools of legal philosophy partaking in this discussion are legal positivism and natural law. Tom Reagan describes the ideas of positivism and natural law in relation to the definition of rights followingly. Legal positivists think that the only existing rights are legal rights, while supporters of natural law believe that in addition to legal rights, there are also separate moral rights that regulate our behaviour even when no law is there to protect us.174 The latter, naturalist explanation of rights seems to require a particular view on morality as something independent of the individual and societal norms. To see rights as something that exists outside of their codified form often means that one must also believe
173 See Regan (n 89) and (n 170). See also Peter Singer, Applied Ethics (Oxford University Press 2011) 215–229. 174 Regan (n 170) 23.
42 in a universal system that sets these rights for us.175 For the purposes of law, such a definition of rights seems dysfunctional and far too intangible, which is why the positivist description falls closer to the concept of rights used in this thesis. However, it seems wrong to claim that law and morality are not intertwined somehow, which is why a purely positivist definition of rights would not fit the arguments presented in the upcoming analysis. A more fitting description of law is found from inclusive positivism represented by philosophers such as H.LA Hart, who believed that, for law to function correctly, it needs to be backed up with a minimum level of morality.176 Moreover, applying the logic of the positivist ideology, this analysis views morality as something stemming from society.177 The shared values of a community guide collective morality, and what a nation or a community might find moral does not need to be that for other groups of people. These moral values are then reflected in legislation via legal rights such as the ones described in the ECHR. Morality is, therefore, something that guides rights, but without it being put in a ratified form, it cannot be legally enforceable and therefore lacks the status of a right. Conclusively, legal rights are the only rights that exist in practice. At the same time, legal rights are and should be influenced by morality as a legal right without any moral drivers risks losing meaning in the eyes of the people and can thus become effectless.178
6.2.2 Legal personhood Having laid down the basic idea of what this thesis regards as rights, the analysis will now proceed to discuss their ownership. The capability of owning rights and having responsibilities based on them is called legal personhood. The current requirements for legal personhood have developed over a long period, experiencing significant changes from time to time. Excellent examples of this are the abolishment of slavery and the development of women’s rights. In Union, legislation rights owners have always been either human or, like in the case of corporate legal personhood, been represented by
175 JE Penner and E Melissaris, McCoubrey & White's textbook on jurisprudence (5th edn, Oxford University Press 2012) 11. 176 ibid 66–7. 177 As J Gardner stated about the validity of law, the definition of morality in the context of thesis also ‘depends on its sources and not its merits’ meaning that it stems from and is amended by the individuals environment. See ibid 40. 178 See Penner and Melissaris (n 175) 66–67.
43 humans.179 This is because it is generally believed that legal rights consist of the correlating rights to obtain and be protected from something and that, to be able to possess these rights, one needs to be able to exercise them. The classification of rights and the requirements for having access to them will be discussed below, starting from Tom Reagan’s definition of the nature of rights. Regan classifies rights as either negative or positive by their nature.180 Negative rights, according to him, are rights that protect someone from outer interferences. Such rights would, for example, be the right to life and the right to bodily integrity that prohibit people from treating each other in certain ways.181 Positive rights, on the other hand, are rights that give people access to something. A positive right could, for example, be the right to get assistance from the state because of an illness.182 A similar structural idea of rights is presented by Saskia Stucki, whose arguments about the nature of rights are based on Wesley Hohfeld’s ideology.183 In her article, Stucki states that most rights consist of an individual’s claim to the society, and thus, it is claims that form the requirements for rights ownership.184 Consequently, for someone to obtain a right, it is required that other members of the society can respect that right by not acting against it. This is because a claim is without a purpose if it cannot and does not have any practical effect. Like Regan, Stucki then also deals these so-called claim rights up to negative and positive categories. Another form of rights in Stucki’s article is liberties, which, unlike the earlier mentioned positive and negative claim rights, focus on the individual’s freedom to do or not do something.185 An example of a liberty right could be the freedom of religion. Animals are sometimes thought to naturally possess liberty rights as they can roam freely in the wilderness without anyone regulating their actions.186 However,
179 Brian Favre, ’Is there a need for a new, an ecological, understanding of legal animal rights?’ (2020) 11/2 J. Hum. Rights Environ. 302–3. 180 Regan (n 170) 24–5. 181 ibid. 182 ibid. 183 According to Hohfeld, there are four categories of rights which all correlate with a related duty. Rights can be exercised between two individuals but their application to non-human beings can be problematic. For a more in-depth analysis see Yaffa Epstein and Hendrik Schoukens, ‘A positivist approach to rights of nature in the European Union’ J. Hum. Rights Environ. (2021) 2 4–5. 184 Saskia Stucki Towards a Theory of Legal Animal Rights: Simple and Fundamental Rights” (2020) 00 OJLS 5–6. 185 ibid. 186 Stucki (n 184) 6.
44 according to Stucki, this claim is not legally sound because liberties require active and acknowledged participation from the rights owner’s side for them to be exercised.187 Building on the ideas presented in this section, it seems that the requirements for legal personhood consist of the following three basic concepts: the ability to claim rights, the ability to respect the rights of others and the ability to actively exercise certain rights that require it. These requirements are regularly taken up in the discussion of animal’s legal personhood as an argument for not allowing non-human animals to obtain legal rights. The most common reasoning here is that non-human animals lack the cognitive abilities to actively exercise and respect the rights of others. These requirements do not seem to apply to humans who, unlike other animals, are perceived to intrinsically have fundamental rights regardless of their cognitive capability.188 If legal personhood is something that humans possess intrinsically regardless of their mental capacity, how can we keep excluding other animals from the scope of legal personhood on this very basis? Why does mental capacity gain exponentially more value when the discussion moves from intra to inter-species comparisons? These questions will be answered in the following sections, where the current position and future developments of animal rights will be discussed from the perspectives of the Union and its wildlife trade legislation.
6.2.3 Do animals possess legal rights? Even though the preceding discussion suggests that non-human animals do not possess any legal rights, it is also important to note that animals are not entirely without legal protection, resembling that of the above-mentioned rights. Whether the rules providing this protection can be regarded as rights in the same sense as the ones protecting humans is, however, something that scholars disagree about. A multi-sided analysis pertaining to the nature of these rules will therefore be presented in the text below. One view of animal rights suggests that although direct legal rights are reserved to humans, other animals possess indirect rights through legislation regulating their treatment, environment and welfare.189 For example, different requirements for maintaining and promoting the welfare of animals can, according to this view, imply that animals have a right to be treated humanely or a right not to be subjected to physical
187 Stucki (n 184) 6. 188 See Wills (n 171) 101–3. 189 Stucki (n 184) 12–14. See also Kurki (n 7) 850–2.
45 pain.190 Similarly, different rules regarding, for example, the living conditions of animals can be seen to guarantee a right to clean water, food or other necessities. While there are many pieces of legislation that provide animals with a minimum level of treatment according to their species-specific needs, some critical differences exist between these rules and the fundamental rights of humans. These differences make it difficult to state that the rules of animal welfare legislation would fit under the concept of rights in the same sense as the rights of humans do. Stucki talks about this in her article where she, although also calling both of these concepts rights, separates simple and fundamental animal rights.191 Simple animal rights, according to Stucki, protect animals through rules applied in ways comparable to the way rights are applied, despite not granting any explicit rights through their wording.192 However, unlike fundamental rights, which typically have an established place in the legal system, simple rights lack normative strength when brought up against other interests in legal proceedings.193 This new idea of rights defies the classical definitions presented earlier by both Regan and Stucki herself, as it indicates that despite their cognitive shortcomings, animals can still enjoy certain simple legal rights. From the perspective of animal law, this is a welcomed development as recognizing that animals may already possess some legal rights could lover the threshold for changing the definition of legal personhood. Although some scholars take issue with the view recognizing the existence of simple animal rights, it is still clear that the current developments in European national legislation are moving the EU and its Member States to a direction that eventually supports the idea of fundamental animal rights. Practical examples of this will be presented in the analysis below.
6.2.4 Animal rights in existing European legislation As demonstrated in the previous section, some academics have already accepted the existence of indirect or simple animal rights. These notions are, however, largely theoretical, and it is therefore equally important to present the ways in which legal animal rights manifest themselves in the legislation of EU Member States. In addition to Member
190 Stucki (n 184) 12–14. See also Kurki (n 7) 850–2. 191 ibid 19–20. 192 ibid. 193 ibid 20.
46 State legislation, Swiss law will also be discussed in the upcoming analysis because of its exemplary animal protection rules and the nations close connection to the Union. None of the EU Member States currently provide animals with legal protection matching that of fundamental human rights. Furthermore, EU laws protecting non-human animals are often aimed at species conservation rather than preserving the animals’ lives for reasons of morality.194 Even though the killing and selling of certain animal species is prohibited, there are always reservations to these prohibitions based on the needs of science or free trade. Despite not providing animals with legal rights, some national legislations recognize animal sentience and see it as an integral part of how animal welfare issues should be approached. Some of the most developed of such systems are found in Switzerland, Austria, and Germany, all of which, on a global level, provide high levels of animal protection.195 Furthermore, unlike the uncertain wordings of article 13, the Swiss, Austrian, and German legislations clearly define what they mean by sentience and how it should be considered when their laws are applied.196 The Swiss animal welfare act demands that the dignity and welfare of animals are respected. An animal’s dignity is defined as ‘the inherent worth of the animal that must be respected’.197 Animal law scholars have called the Swiss legislation both unique and progressive. As Kurki describes it, Swiss legislation does not limit the concept of sentience to physical pain and suffering but instead considers the dignity of an animal to be disrespected even through humiliating treatment and extensive instrumentalization.198 This definition clearly distinguishes animals and objects, implying that animals have an intrinsic value that demands their interests to be protected by law.199 This intrinsic value is also recognized by Austrian legislation in which a notion of it is stated out loud: a translation of the Austrian Animal welfare act states the act's goal is ‘the protection of the life and well-being of animals based on man’s special responsibility
194 See section 3.2. 195 Switzerland especially has been a topic of discussion in many articles about animal rights. See for example Kurki (n 7) 867–8 and Favre (n 179) 309–311. 196 Cf section 3.1. 197 The translation for the relevant parts of the swiss Animal welfare act from 2005 was retrieved from Animal Protection Index (API) ‘Switzerland’ (api.worldanimalprotection.org, 10 March 2020)
47 for the animal as a fellow creature’.200 In addition to this, Austrian law also recognizes animal sentience, to which it refers primarily in terms of pain, suffering and anxiety. However, this restricted interpretation of sentience does not mean that the Austrian legislation is limited in the same way as article 13 TFEU.201 On the contrary, the notion of sentience should be read together with the aim of the welfare act and article 285a of the Austrian Civil code, which officially separates animals from objects.202 Together these rules provide for a comprehensive understanding of the value of animal lives. Similarly to the now presented Austrian legislation, the German Animal Welfare act also presents a human responsibility to protect animals from unjustified exposure to pain and suffering.203 Animal sentience is recognized in the German constitution, which lists the protection of animals as one of its official goals.204 German legislation, therefore, provides a good fundamental legal support system for the welfare of animals. However, much like its Austrian counterpart, this system is limited by its narrow definition of animal sentience. It is also partly unclear which animals belong to the scope of the German notion of sentience.205 Regardless of its shortcomings, the German legislator gives value to the individual lives of animals and is thus paving the way for a more comprehensive understanding of non-human animals as a part of German society.206 All the examples given above describe the most potent forms in which animal rights represent themselves in national European legislation. Switzerland, Austria, and Germany are prime examples of well-developed legislation that leaves room for animal rights despite none of these legal systems containing an animal bill of rights. Furthermore, it is evident that the rights of animals are developing on both national and Union levels and that non-human animals are not entirely unprotected in either system. However, despite their clear will to promote animal welfare, none of the EU's Member States have chosen to embrace the concept of animal rights entirely, and the question that remains is
200 API ‘Austria’ (api.worldanimalprotection.org, 10 March 2020)
48 why? The following analysis discusses common objections to the animal rights approach, trying to answer this question.
6.2.5 Common concerns about animals’ legal personhood Although the legal personhood of animals is an increasingly popular subject, the reality is that animal rights in their purest form are not yet a part of the legal system in any Union Member State. The reasons for this are complex, relating to different views of morality, the practical issues related to the introduction of these rights and the negative implications animal rights could have on certain vulnerable groups of humans. The following sections of this chapter aim to present another side of the animal rights issue, bringing light upon the theoretical concerns related to this subject. The analysis will also address these concerns by presenting informed counterarguments to them. One of the most common objections to introducing animals’ legal personhood is the argument of morality.207 The core of this argument is based on the idea that non-human animals lack the cognitive abilities to understand the world in a human-like way, which makes them unable to perceive moral concepts. Because of this, non-human animals cannot understand or provoke their rights and do not know how to respect the rights of others.208 Therefore, the lack of human features in non-human animals speaks for not granting animals rights that they cannot uphold or exercise in relation to themselves or others around them. As pointed out in the previous chapters, non-human animals possess a multitude of human-like cognitive capacities. Many species have their own cultures, social structures and languages, comparable to those of humans.209 In addition to this, non-human animals also experience a wide range of different emotions and can understand concepts commonly connected with the human idea of morality.210 For example, emphatic behaviour is presented by many species, such as crows and elephants, that visually express their grief at the time of loss.211 Crows have even been proven to hold funeral- like events in which they gather around their dead, decorating the place with plants and standing still in mourning.212
207 See chapters 6.2.1–6.2.3. 208 Regan (n 170) 102. 209 See section 6.1.1. 210 Section 6.1.2. 211 Marvin and Susan McHugh, Routledge Handbook of Human-animal Studies (Routledge 2014) 278–9. 212 ibid 281–282.
49 Moral behaviour and empathy go hand in hand when it comes to interaction between living beings. Without empathy as an indicator of other’s feelings, we would have a hard time making decisions that we perceive as morally right. Morality does not necessitate empathy, but empathy still acts as an important motivator for it.213 Although non-human animals may not understand the concepts of moral and immoral behaviour, they will still often naturally act in moral ways. This is because animals are capable of recognizing and reacting to others’ feelings and can regulate their actions accordingly.214 Advanced non- verbal communication methods further facilitate this process by allowing them to create and uphold social relations.215 Conclusively, the fact that non-human animals do not understand human concepts of morality does not mean they cannot act in moral ways. However, it is true that most animals cannot follow legal rules set by humans, and thus it would be difficult for them to fulfil the classical requirements for legal personhood. Here we return to a previously proposed question: if the requirements for rights ownership are measured with the help of cognitive abilities, why do young children or people with disabilities fulfil the criteria for legal personhood? Many of these people cannot understand or exercise their rights, but regardless of this, all of them have and should have access to the same rights as non-disabled individuals. A common claim here is that, unlike animals, all humans possess legal rights because of their humanity. According to this view, human life has intrinsic value that must always be protected by law.216 Based on what has been said in the previous discussions on animal intelligence and emotions, it seems evident that current scientific knowledge speaks against this claim. Non-human animals bear a striking resemblance to humans in many ways, and what is generally seen as ‘humanity’ may not be something so unique after all. Furthermore, it can be questioned whether such similarity-based arguments should have a bearing in the discussion on animal rights, to begin with.217 Definitions of good animal welfare and humane treatment that depend on human convenience do not seem to provide adequate legal protection for animals.218 Letting go of these anthropocentric definitions would
213 See for example De Waal (141) 132–3. 214 ibid. 215 See section 6.1.1. 216 See for example Wills (n 171) 212–4. 217 For further analysis on the issues with the similarity argument, see Iyan Offor, ‘Second wave animal ethics and (global) animal law: a view from the margins’ (2020) 11/2 J. Hum. Rights Environ. 274–7. 218 Scholtz W, “Injecting Compassion into International Wildlife Law: From Conservation to Protection?” (2017) 6 Transnatl. Environ. Law 464–6.
50 allow us to create legislation that genuinely protects the welfare of non-human animals. It is therefore hard to see how claims of cognitive superiority or the intrinsic value of humanity could be legitimate bases for denying the legal rights of animals. In addition to the arguments presented above, it has also been claimed that granting animals legal rights would lead to a lowered legal status for disabled people.219 The most extreme of these arguments have even stated that introducing animal rights would mean that disabled people would be seen as lesser than humans and that comparing mentally impaired humans to animals is therefore degrading.220 These arguments have been addressed in Joe Wills’ article, from where it can be seen that claims like this are often based on the same idea of the intrinsic value of humanity mentioned in the previous analysis.221 Although flawed, this argument is surprisingly not in conflict with the legal personhood of animals. As Wills explains in his article, granting animals rights does not mean that they will be treated the same way as humans.222 To exemplify this, he compares feeding a dog to feeding a human, stating that, even if they have the same rights, they cannot both be fed from a bowl on the floor.223 As explained in the earlier sections, different species have different needs, and the legislator will recognize these needs if animal rights ever become a part of our legal system. The third argument against animal rights touches upon cognition and sentience in a more practical manner. Let us say that some animals possess cognitive abilities similar to humans, and thus we deem them to have fulfilled the criteria for legal personhood. As demonstrated earlier, current knowledge of animal cognition and the mechanisms for investigating it are still in their infancy, and it is nearly impossible to define the extent of cognitive ability in all animal species.224 If we cannot determine which animals are intelligent enough to have rights, how will the line for rights ownership be drawn? It is also not realistically possible to grant all animals equal rights at once, as this would mean granting the same rights to bears and insects alike. Introducing universal animal rights would also lead to total removal of animal-related products and thus would negatively affect almost every aspect of human life.
219 Wills (n 171) 205–207. 220 ibid 206. 221 ibid 205–7. 222 ibid 206–7. 223 Wills (n 171) 206–7. 224 See section 6.1.1.
51 Perhaps contrary to the previous claims, this argument hits the core of the issue with animal rights. The potential limits of legal personhood are hard to define, and no scholar yet has presented a fully functional method for doing it. However, it has been suggested that only animals with scientifically proven consciousness should be granted legal rights, as species with lesser cognitive functions and sensory abilities, such as amoebas and insects, do not need the same level of protection.225 Nevertheless, this argument is still limited by the constraints of current scientific knowledge and thus only provides a partial solution to the issue. Limiting the scope of animal rights based on what we know now might lead to further suffering for many intelligent and sentient beings. A great example of this is marine animals that researchers have recently found to possess much more advanced cognitive abilities than previously thought.226 Therefore, defining legal personhood with the help of cognitive abilities is not a perfect solution. However, it seems like a good starting point for developing animal rights as many of the species humans hurt the most, such as farm animals, exotic carnivores, and fur-farmed animals, could, in light of current scientific knowledge, qualify for legal personhood.227
6.3 The animal rights approach as a realistic solution Having discussed the animal rights approach from different theoretical perspectives, the analysis will now move on to estimate its effectiveness as a real-life solution. The effects of introducing animal rights will be discussed both generally and from the perspective of the EU’s wildlife trade legislation. Based on the concerns presented in the previous analysis and the unavoidable practical consequences of introducing animal rights, this section will focus on three practical dilemmas central to this approach: the impossibility of using animals or animal products for human needs, the fear of the negative consequences for humanity and the issues of legal responsibility and representation.
6.3.1 The removal of animal-related products The introduction of animal rights in their complete form would without a doubt make it impossible to justify the use of animals and animal products in our daily lives. A clear positive side of this is that the legal trade of endangered animals would become
225 Wills (n 171) 199–200. 226 See De Waal (n 141) 145–152; Bermant and others (n 150). 227 See the discussion about requirements for legal personhood in section 6.2.2.
52 impossible, and the sanctions related to illegal animal trafficking would likely be heightened.228 Within certain commercial fields, such as fur farming, removing animal- related products would mean that the whole industry would eventually die out. Whilst this would be an issue for the workers within these industries who would lose their jobs, the disappearance of such professions would not affect the lives of average Union citizens. At the same time, other production areas, such as the meat and dairy industries, are essential for our lives and would need to be replaced if the usage of animals was out of the picture. Even though theoretically, it is not an issue to replace most animal-related products with artificial substitutes, the realistic prospects of doing this are still limited. In recent years, more and more plant-based and synthetic products have replaced the usage of animals, especially when it comes to food production.229 However, compared to their animal-based counterparts, these products are relatively expensive, and people’s opinions of them vary. Furthermore, the same kind of rapid development has not been possible in all areas of animal usage, and test animals, for instance, remain an integral part of fundamental medicinal research.230 These issues could be tackled with the help of extensive financial and regulatory solutions. Lowering the consumer price of replacement products with the help of governmental structures would likely result in rapid changes within the industries concerned by these issues. Examples of this could be different taxation solutions and investments in research focusing on alternative medicinal testing methods. However, it seems unlikely that the Member States would be willing to direct their funds towards issues that, from their perspective, might not need resolving and could cause political controversy. Another contentious issue following the removal of animal products and animal usage is the interest balancing discussed at the beginning of this thesis.231 This issue is crucial from the perspective of wildlife trade as the traded animals, and their parts are often
228 See section 6.3.2. 229 A 2020 study by The European Consumer Organisation (BEUC) shows that the consumption of meat in Europe is declining whilst sustainable thinking grows rapidly. See The European Consumer Organisation, ‘One bite at a time: consumers and the transition to sustainable food’ (BEUC 2020). 230 Gill Langley and others, ‘Replacing animal experiments: choices, chances and challenges’ (2007) 29(9) Bioessays 918-926. 231 See section 3.1.3.
53 used for cultural or religious purposes.232 Cultural and religious rights have a high standing in the Union’s legislative system, and putting them aside to grant animals rights would undoubtedly be an issue for the groups that regularly use animals in their practices.233 Therefore, the only feasible solution to the issue of colliding interest is that the Union takes a firm standing to its policy on animal rights by expressing that an animal’s life is worth more than the possibility to perform religious or cultural rites. The likelihood of a statement like this might seem far-fetched but, considering the legal developments made in Centraal Israëlitisch Consistorie van België and the rising popularity of the animal rights movement, it is not a complete impossibility.
6.3.2 A step-by-step model for better protection Extreme negative attitudes towards the idea of animal rights are often based on the fear of losing something important such as the unique value our societies give to human life. A good example of an argument created out of such fear is the one regarding the position of disabled people presented in the previous sections. Whilst it is possible to debate arguments like this, it is often hard to change people’s minds if their beliefs are based on fear. For this reason, out of the three points presented in the beginning, this one is the hardest to overcome. However, as seen with many societal changes in human history, it is not impossible to turn this fear around. A sound strategy for overcoming this issue is grounded on thorough base work. First, people must understand what their rights are and how sharing them with other species does not affect their societal standing in any way. Second, guidance on the differences between the treatment of humans and non-human animals needs to be readily available and clearly expressed in the legislative and governmental documents addressing the implementation of animal rights. Finally, the proposed legislative decisions need also to be backed up by science. Regardless of the chosen approach, changing people’s minds is never a quick process. If people are not ready to grant equal rights to all of their own, it is hard to believe that fully functional animal rights would be a realistic prospect for the near future. Having said this, it is also essential to realize the gravity and urgent nature of the animal welfare
232 Much of this trade is aimed towards Asia but it is not to be forgotten that Asian traditions including the use of endangered animals are not absent inside the Union. In addition to this, wild Animals are also a part of many European cultural and religious traditions. See for example Quave and Pieroni (n 36). 233 See for example Centraal Israëlitisch Consistorie van België (n 59).
54 issues related to the trade of endangered animals. Therefore, it is vital to find a solution as soon as possible, which is why I propose a step-by-step approach. Perhaps it is impossible to embrace non-human animals as our equals immediately, but surely there is enough scientific and theoretic basis for us to grant them a basic level of adequate legal protection. As mentioned in the previous chapters, many scholars believe that animals already possess certain simple or indirect rights.234 Common to these ‘rights’ is that they all function on the assumption that humans have a duty to treat animals in a certain way, and if they do not, a sanction will follow. However, issuing a sanction does not mean that the animal will receive the care it needs. In many cases of inadequate treatment, especially within the area of wildlife trade, the animals are still considered the property of the abuser after the issuance of sanctions. Therefore, if the owner refuses to allow treatment, there is not much anyone can do until the animals are officially confiscated. The case of the ten tigers is a prime example of this.235 Additionally, the enforcement procedures regarding the duties towards animals have also proved both inefficient and time-consuming, which puts the animals in a high-risk position.236 For these reasons, it is evident that a system in which endangered animals are only protected via duties imposed to humans without the animal itself having much of an individual value is, at its best, a defective one. The now mentioned issues would, however, likely not apply to a rights-based approach. The sanctions for physically harming another person and thus breaching, for example, their right to bodily integrity, have far more longstanding societal and personal consequences to the perpetrator than what failing to provide proper care to an animal would have. This is because legislators generally value an individual that possesses rights, i.e., a human, higher than a non-human animal, which is still a commodity in the eyes of EU law. As a first step, the Union could provide non-human animals with limited fundamental rights such as the right to be treated humanely or live a fulfilling life. This statement would be strong enough to make the Member States change their approach to non-human animals, but it would not be intrusive enough to limit the daily lives of Union citizens intensively. It would also make treatment such as the one presented in the case of the ten tigers impossible and thus significantly better the position of captive-born endangered
234 See 6.2.3. 235 Section 5.1.3. 236 See chapter 5.
55 animals. Furthermore, these basic rights that are not as fundamental as the right to life or the right to bodily integrity and would therefore not feel like a threat to the people who fear the effects of animal rights. These rights could also be tied to scientific facts such as a species’ currently recognized cognitive abilities, making their rapid implementation not feel like an unreasonable revolutionary change in how we see ourselves and the animals around us. For solving the third and last practical issue regarding the introduction of animal rights, I propose a guardianship model similar to the one described in Kurki’s article.237 In a legal guardianship system, animals would be placed in the custody of their owners instead of being their property.238 Naturally, the custody of an animal could then also be assigned away if the treatment of the animal breached the animal's legal rights or was otherwise unacceptable.239 Consequently, within the court system, animals would be presented with a legal representant that, similarly to representing legally incapacitated people, would speak for the animal’s behalf. Animal advocates are already used in American courts, and a similar system was also previously used in Switzerland.240 The prospects for introducing a guardianship-based method seem to therefore be positive. Regarding the trade of endangered animals, introducing a guardianship model would likely hinder animal mistreatment and make control mechanisms more effective. In cases of severe welfare breaches, such as the case of the ten tigers, officials would be able to act quicker and with more drastic measures. Consequently, animals would get the treatment they need when they need it, without questions of material ownership interfering with their welfare.
7 Concluding discussion
In this last chapter, the analysis will come back to the three questions presented at the beginning of this thesis: is EU legislation regarding the trade of endangered animals anthropocentric, and if it is, what are the problems arising from anthropocentrism? Could the animal rights approach be a viable solution to these issues? The answers to these questions are gathered from the entire analysis above. Each question will be discussed separately.
237 Kurki (n 7) 858, 870. 238 ibid. 239 See the decision of Turku Court of Appeal (Turun Hovioikeus) in Kurki (n 7) 860 footnote 42. 240 Antoine Goetschel worked as an animal advocate in the Zurich canton from 2007 till 2010.
56 7.1 The nature of the regulations It is clear that EU’s wildlife trade regulations treat captive-born and wild-born Annex A- listed animals unequally. This differential treatment is grounded on the idea that trade with captive-born animals is not as harmful to the species’ wild populations as trade with wild-born animals. Unlike their wild counterparts, the commercial trade and breeding of captive-born tigers is not prohibited by the EU, and 50 per cent of the Unions Member States still allow the keeping of live tigers in circuses or private facilities. The wordings chosen for the regulations seem to also be problematic as they compare live animals to inanimate objects and provide only minimal protection to the animals’ health and safety during transport situations. The Union’s interpretation of animal welfare leaves room for improvement as the current approach does not recognize animals' individuality and personal needs. This applies to captive and wild-born animals alike. All of this shows that the Union’s approach to the issues of wild animal trade is not in line with the recognition of animal sentience. It also indicates that the individual value of the animals within the scope of the wildlife trade regulations is not something that the legislator has put much focus on. Instead, the regulations seem to merely be aimed at limiting the adverse effects of trade with endangered animals in a way that is the least detrimental to the trade itself. Based on what has been said in this analysis, it seems unquestionable that Union legislation regarding the trade of endangered animals is anthropocentric.
7.2 The effects of anthropocentrism As pointed out above, it seems that EU legislation on the trade of endangered animals is not protecting the interests of the animals as effectively as it could. The unequal levels of protection provided to captive and wild-born animals have led to many real-life issues in the enforcement of the wildlife trade regulations. In addition to this, the explanation given for this differential treatment is implausible as the commercial trade with captive big cats is likely to encourage the illegal trade of wild animals. Member States hold much freedom in choosing how to interpret and apply the Union’s rules, and the sanctions given for breaches of the two regulations vary a lot from state to state. Because of the EU’s seemingly indifferent attitude towards the welfare of the traded animals, many countries do not see matters related to animal trade as something that needs to be prioritized over other trade-related issues. Whilst rules exist for protecting the safety
57 of the traded animals, the protocols used to enforce them are either insufficient or not followed correctly. If the current systems were functional, it would not be possible to transport large animals in inhumane conditions through the borders of multiple Member States and go unnoticed. Thus, it is evident that the enforcement of the EU’s wildlife trade regulations lacks a sense of urgency and the attention it needs.
7.3 Is there a viable solution? The animal rights approach seems to present a potentially functional and applicable solution to the issues related to the trade with endangered animals. Besides the philosophical arguments, a significant amount of scientific information backs the introduction of a more comprehensive view of legal personhood. In fact, with the current knowledge of animal cognition, it is hard to deny that animals deserve better protection and treatment than what they have today. However, because of the groundbreaking nature of this solution, there are also several practical issues related to its introduction that need to be addressed before non-human animals can realistically gain full legal personhood. The issues with giving up animal-related products are, at least in theory, relatively simple to solve. However, one major setback in solving this issue is its cost. A significant obstacle for animal rights is also the differing opinions of people and the fear of the uncertain. These issues require a firm and slow-paced solution that clarifies the process for the people that fear for their rights. Even a basic level of protection in the form of rights would tremendously positively impact the welfare of the endangered animals mistreated daily within the EU. With the help of a step-by-step approach, the Union could achieve significant changes in animal welfare, reduce the number of illegal trade activities, and keep people happy whilst doing so.
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Literature Andrews K and Beck J, 'The Routledge Handbook of Philosophy of Animal Minds' (Routledge 2018) Bermant PC and others, 'Deep Machine Learning Techniques for the Detection and Classification of Sperm Whale Bioacoustics' (2019) 9(1) Sci. Rep. 12588 Broom D, ‘Animal welfare in the European Union’ (2017) European Parliament Policy Department, Citizen’s Rights and Constitutional Affairs, Study for the PETI Committee 75 Chandroo KP, Duncan IJH and Moccia RD, ‘Can fish suffer?: perspectives on sentience, pain, fear and stress’ (2004) 86 Appl. Anim. Behav. Sci. 225–250 Cioc M, The Game of Conservation: International Treaties to Protect the World’s Migratory Animals (Ohio University Press 2009) Coleman JL, The practice of principle (Oxford University Press 2001) De Waal F, Are we smart enough to know how smart animals are? (Granta 2016) Favre B, ‘Is there a need for a new, an ecological, understanding of legal animal rights?’ (2020) 11/2 J. Hum. Rights Environ. 297–319 Gibson TJ and others, 'Electroencephalographic Responses of Halothane-Anaesthetised Calves to Slaughter by Ventral-Neck Incision without Prior Stunning' (2009) 57(2) N Z Vet J 77-83 Epstein Y and Schoukens H, ‘A positivist approach to rights of nature in the European Union’ J. Hum. Rights Environ. (2021) 2 Hine R, A Dictionary of Biology (4th edn, Oxford University Press 2019)
60 Håkansson G and Westander J, Communication in Humans and Other Animals (John Benjamins Publishing Company 2013) Ishwara BP, Idea and Methods of Legal Research (1st edn, Oxford University Press 2019) Kurki V, ‘Onko eläin esine? Eläimen oikeudellisesta asemasta’ (2020) 6 Lakimies 845– 871 Langley G and others, ‘Replacing animal experiments: choices, chances and challenges’ (2007) 29(9) Bioessays 918-926 McHugh M and S, Routledge Handbook of Human-animal Studies (Routledge 2014) McSweeney FK and Murphy ES, The Wiley Blackwell Handbook of Operant and Classical Conditioning (John Wiley & Sons, Incorporated 2014) Matzel LD, Wass C and Kolata S, ‘Individual Differences in Animal Intelligence: Learning, Reasoning, Selective Attention and Inter-Species Conservation of a Cognitive Trait’ (2011) 24 Int. J. Comp. Psychol. 36–59 Novak M, The Type Theory of Law An Essay in Psychoanalytic Jurisprudence (Springer 2016) Ofield S, The trade in wildlife: Regulation for conservation (Earthscan Publications 2003) Offor I, ‘Second wave animal ethics and (global) animal law: a view from the margins’ (2020) 11/2 J. Hum. Rights Environ. 268–296 Pavone I R, ‘Is banning enough? the intricacy inherent to marine mammal conservation’ (2019) 20(5) Ger. Law J. 587-613 Penner JE and Melissaris E, McCoubrey & White's textbook on jurisprudence (5th ed, Oxford University Press 2012) Peters A, 'Liberté, Égalité, Animalité: Human–Animal Comparisons in Law' (2016) 5(1)Transnatl. Environ. Law 25–53 Quave C and Pieroni A, ‘Mediterranean Zootherapy: A Historical to Modern Perspective’ in Alves R and Rosa IL (eds), Animals in Traditional Folk Medicine: Implications for conservation (Springer 2013) 308. Regan T, Animal Rights, Human Wrongs: An Introduction to Moral Philosophy (Rowman & Littlefield 2003) Regan T, Empty Cages: Facing the Challenge of Animal Rights (Rowman & Littlefield 2004) Salvador RB and others, ‘Invertebrates in Science Communication: Confronting
61 Scientists’ Practices and the Public’s Expectations’ (2021) 9 Front. Environ. Sci. Salzen EA, ‘Emotion and self-awareness’ (1998) 57 Appl. Anim. Behav. Sci. 299–313 Scholtz W, ‘Injecting Compassion into International Wildlife Law: From Conservation to Protection?’ (2017) 6 Transnatl. Environ. Law 463 Sowery K, ‘Sentient beings and tradable products: The curious constitutional status of animals under Union law’ (2018) 55 CMLRev 55–100 Stucki S, ‘Towards a Theory of Legal Animal Rights: Simple and Fundamental Rights’ (2020) 00 OJLS 1–28 Van Hoecke M, Methotodologies for legal research (Hart Publishing 2013) Van Uhm D, The Illegal Wildlife Trade – Inside the World of Poachers, Smugglers and Traders (Springer International Publishing Switzerland 2016) Wahlberg B, ‘Animal Law in general and animal rights in particular’ (2021) 67 Sc. St. L. 14–34 Wills J, ‘Animal rights, legal personhood and cognitive capacity: addressing ‘levelling- down’ concerns’ (2020) 11/2 J. Hum. Rights Environ. 199–223 Woodhall A, Garmendia da Trindade G, Ethical and Political Approaches to Nonhuman Animal Issues (Palgrave macmillan 2017)
Materials from international organizations Four Paws, Europe’s second-class tigers – Revealing the out-of-control captive tiger numbers and commercial trade, March 2020 Four Paws 2019 Annual Report IUCN, ‘An Introduction to the African Convention on the Conservation of Nature and Natural Resources’ (2004) IUCN Environmental Policy and Law Paper No. 56 WWF and TRAFFIC, ‘Falling Through the System: The role of the European Union captive tiger population in the trade in tigers’ 30 September 2020
Websites Animal Protection Index ‘Austria’ (api.worldanimalprotection.org, 10 March 2020)
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Other materials Cassini A: Interview via Zoom on the 21 June 2021 CITES COP14 Decision 14.69 against tiger farming and breeding tigers for trade in their parts and products. CITES Resolution Res. Conf. 12.5 (Rev. CoP18) Conservation of and trade in tigers and other Appendix-I Asian big cat species Reference Guide to the European Union Wildlife Trade Regulations (December 2020) The Cambridge Declaration on Consciousness The European Consumer Organisation, ‘One bite at a time: consumers and the transition to sustainable food’ (BEUC 2020) 2021 Passenger Rights Fact Sheet of the European Union
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