9 Comparative Vantage Points of Extraterritorial

Comparative Vantage Points of Extraterritorial 9 Animal Law Chapter 8 laid down parameters for connecting the law of jurisdiction with substan- tive animal law and gave us a solid idea of the direction extraterritorial animal law must take in the future. But those who specialize in international law might find these parameters too abstract to make clear the precise advantages of applying animal law across the border. Likewise, scholars who specialize in animal studies might wonder if this framework can bring about a paradigm shift since ultimately all states use and exploit animals, albeit in different ways and to different extents. This chapter offers both disciplines more background, each from its own angle. First, I ask if we are limited to applying criminal animal law across the border, or if all laws, including standards of administrative and civil law, can be used to protect animals across the border. I then carve out the relative benefits of applying each of these standards across the border, which enables us to more reliably assess the usefulness and desirability of extraterritorial jurisdiction in animal law. Given the diversity of animal laws across the world, each jurisdiction holds its own promise for animals, which varies across time and depends on the political and sociocul- tural background of the states that exercise jurisdiction. The multitude of local variation does not prevent us from extracting best practices but rather enables us to point to exemplary approaches and concepts that could help guide the law of jurisdiction in the future. To determine which achievements of which states are illuminating, I use a functional comparative method that identifies commonalities and distinct traits of states’ laws. The goal of this analysis is “not to compare specific legal institutions or legal rules, but to connect to the function Protecting Animals Within and Across Borders. Charlotte E. Blattner. © Oxford University Press 2019. Published 2019 by Oxford University Press. 320 Protecting Animals Within and Across Borders that an institution or rule fulfills in a legal system and to analyze which institution or rule in other systems fulfills the same function.”1 The functional comparative method does not offer or purport to offer a full comparative analysis. Instead, it is issue- oriented, which means it helps identify relevant similarities and disparities of jurisdictions in reference to the above research questions. §1 Equivalence of Criminal, Administrative, and Civil Animal Law In the early history of the law of jurisdiction, criminal law in particular was granted extraterritorial reach in order to try individuals who seemed to escape the laws of all states (as in piracy) or to protect nationals from overzealous convictions in foreign states. The growth of extraterritorial norms in other fields of law with civil, criminal, and administrative character (like antitrust law, securities law, and other economically oriented fields of law) challenged the tacit assumption that jurisdiction related only to the criminal side of the law. In their early contributions to the doctrine of jurisdiction, Akehurst, Jennings, and Mann argued that the geographical scope of laws does indeed differ, namely, depending on how norms are classified. Assessing the scope of jurisdiction in this compartmentalized fashion, however, sometimes led to contradictory results. Some scholars claimed that extraterritoriality is more readily accepted in criminal law, while others argued that civil law norms have unlimited territorial reach.2 In animal law, it matters whether or not criminal norms are the only ones that can be used to protect animals across the border. As in antitrust, the nature of animal laws can be criminal, civil, or administrative. Criminal law penalizes violations of animal law with criminal sanctions like fines or imprisonment. Administrative law sets standards for the treatment of animals and determines the administrative actions when these standards are violated, including commands, prohibitions, authorizations, and administrative sanctions. Civil law determines the legal status of animals in civil law (notably whether animals are property or legal persons), whether the interests of animals are to be considered in cases of divorce or separation, death, sale, injury to third parties, etc. and how these issues are dealt with finan- cially.3 If extraterritorial jurisdiction is limited to criminal law, this considerably limits states’ 1 Functional comparative method originated in civil law but is now a firmly accepted method of public law: Vanderkerckhove 97 (2007). In the words of Sandrock, one of the earliest scholars to have described the method and its functioning: “[M] an nimmt auf einen konkreten Lebenssachverhalt oder auf ein konkretes Rechtsproblem Bezug und fragt, welche materiale Lösung für diesen Sachverhalt oder für dieses Rechtsproblem in den verschiedenen Rechtsordnungen vorgesehen ist.” (Otto Sandrock, Über Sinn und Methode der zivilistischen Rechtsvergleichung 67 (1966)). See further on the functional comparative method: Harald Koch et al., IPR und Rechtsvergleichung: Ein Studien- und Übungsbuch zum Internationalen Privat- und Zivilverfahrensrecht und zur Rechtsvergleichung 280 ff. (2010); Susanne Augenhofer,Rechtsvergleichung , in Grundlagen des Rechts 193, 198, 212 (Julian Krüper ed., 2d ed. 2013). 2 Akehurst 171 (1972– 3); Robert Jennings, General Course of Principles of International Law, 121 RCADI 323, 517– 8 (1967); Mann 149– 50 (1964). 3 Tanja Gehrig, Struktur und Instrumente des Tierschutzrechts 219 (1999); Jedelhauser 120, 127 (2011). Comparative Vantage Points of Extraterritorial Animal Law 321 ability to protect animals abroad. For instance, if the law of jurisdiction is limited to criminal law, Botswana could only prohibit its nationals from killing elephants abroad, but not to enter private sales contracts over elephant products. But if the law of jurisdiction extends beyond criminal law, it is likely to be much more effective, not least because most norms in animal law are administrative in nature. Recently, the literature on the law of jurisdiction has given up its narrow focus on criminal law. Scholars either state no preference or advocate for applying identical rules to all fields of law.4 Brownlie claims that “there is in principle no great difference between the problems created by assertion of civil and criminal jurisdiction over aliens.”5 Ryngaert supports this view in the context of antitrust law, “as it is illogical to subject non- criminal antitrust proceedings to a stricter jurisdiction regime than criminal antitrust proceedings, when criminal proceedings are generally deemed more intrusive, in particular in terms of their sanctions, than civil proceedings are.”6 State practice indicates that though most states apply norms extraterritorially in criminal matters, they have not taken a narrow view on it. As early as 1927, the PCIJ held in Lotus: “[T] he principles of international law are to determine questions of jurisdiction—not only criminal but also civil— between the contracting Parties [. .].”7 Since this rule applies to the law of jurisdiction at large, it must also apply to animal law. It follows that all criminal, administrative, and civil norms of animal law are, in principle, eligible to be applied extraterritorially. §2 Applying Constitutional Animal Law Extraterritorially Most people imagine animal law to be a single legislative act that describes in detail all duties owed to animals, such as, for example, the animal welfare act, animal protection act, or anti- cruelty act. But norms that regulate our manifold relationships with animals are enshrined in different acts and regulations, and they can be found at multiple regulatory levels. Some of the strongest tools are constitutional norms. A few states have decided to constitutionalize their perceptions about, goals regarding, or legal duties owed to animals, and thereby bring “them into the very structure of the body politic.”8 Constitutional animal law is of fundamental importance for the legal order of a state. It frames animal law at a high level of abstraction, endows it with broad application, and is likely to point to desirable future developments. Constitutional goals or duties may exist on a state level (e.g., the Bundesverfassung in Switzerland, or the Grundgesetz in Germany) or on a substate level (e.g., the state constitutions in the United States, the Kantonsverfassungen in Switzerland, 4 U.S. Restatement (Fourth) of the Foreign Relations Law, § 402, cmt. d; Bowett 2 (1982); Brownlie 300 (2008); Lowe, International Law 171– 2 (2007); Oppenheim’s International Law 458 (1992); Orakhelashvili 213– 6 (2019); Ryngaert, Jurisdiction over Antitrust Violations 16 (2008); Schwarze 21 (1994). 5 Brownlie 300 (2008). 6 Ryngaert, Jurisdiction over Antitrust Violations 16 (2008). 7 Lotus, 1927 P.C.I.J. 17 (emphasis added). See also United States v. Nippon Paper Industries Co., 109 F.3d 1, 4 (1st Cir. 1997) (U.S.). 8 Wagman & Liebman 260 (2011). 322 Protecting Animals Within and Across Borders or the Landesverfassungen in Germany). Some states identify animal protection as one of their “state objectives.” Others protect the dignity of animals in their constitution. Some established a constitutional duty of compassion owed to animals that courts have reframed as rights of animals. And others have expanded their constitutional mandate to protect the environment to also protect animals from cruelty. Animals

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