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Animal sentience within the law – an international perspective by Grace Hudson

Animal sentience broadly refers to the ability of animals to feel, for example, by experiencing pain, pleasure, or suffering. Scientific literature generally accepts that all vertebrate species are sentient, and increasing research shows that invertebrate species are also sentient.[1] As early as the 1800s, Darwin proposed that some animals were capable of self-consciousness, a trait previously assumed to be solely human. Research has since shown that animals including dolphins, elephants, and magpies are capable of mirror self-recognition.[2] Despite the extensive research showing animals’ capabilities to feel, legislation both domestically and internationally often does not recognise animals as sentient beings. Yet legislating animal sentience is of paramount importance in order to advance animal welfare.

 

In 2009, the European Union (EU) amended the Treaty on the Functioning of the European Union (TFEU) to recognise animals as “sentient beings”.[3] The TFEU prescribes that when formulating and implementing policies, the EU and its member states must pay full regard to animal welfare.[4] This is an important provision as it sets minimum standards for EU members to adhere to when legislating.  Member states France and Belgium have gone further by recognising the sentience of animals in domestic legislation. The French Civil Code states “[a]nimals are living beings gifted with sentience”[5] and the Animal Welfare Code of the Wallonia region in Belgium states animals are “sentient beings”.[6] A number of other member states, namely Austria, Czech Republic, Germany, Netherlands, and Spain (Catalonia region) have legislation to explicitly state that animals are not “things”.[7] Germany has also added the words “and animals” to a provision stating “[t]he State shall protect the foundations of life … by legislation”.[8]

 

However, these stated protections have caveats in each case: Despite declaring animals as “not things”, they also prescribe that, where there is no statute to the contrary, animals shall effectively be subject to the provisions on “things”.[9] This highlights the importance of implementing provisions specifically to protect animals. Without positive rights, legislation simply giving animals the status of “not things” becomes less valuable. Nevertheless, such a status is an important foundation for the implementation of further animal welfare legislation.

 

Unfortunately, the United Kingdom’s position regarding animal sentience within the law remains indeterminate with the potentially imminent departure from the EU. Despite the Draft Animal Welfare (Sentencing and Recognition of Sentience) Bill 2017 and the Government’s alleged commitment to ensuring that animal sentience is reflected in UK law following Brexit, it is yet to be seen how the Environment, Food and Rural Affairs Committee’s recommendations on the draft bill will be implemented following pre-legislative scrutiny.[10]

 

Despite not being part of the EU and thus not subject to Article 13 TFEU, European countries Switzerland and Moldova have taken steps towards protecting animal welfare by introducing provisions similar to those referred to above that give animals the status of not “things” or “objects”. [11] European countries Albania, Montenegro and Belarus do not have any animal welfare legislation in place.[12]

 

Outside of Europe, the position is disappointing. Only Canada, Colombia, and New Zealand recognise animals as “sentient” in law.[13] Azerbaijan goes some way by explicitly stating “animals do not constitute tangible property”[14], while India states “it shall be the duty of every citizen of India … to have compassion for living creatures.”[15] The majority of African countries do not have any animal welfare legislation in place, and those that do merely have basic protections that do not recognise the sentience of animals.[16] There are jurisdictions in each continent which do not have any animal welfare legislation, including a vast number of Asian countries, including China.[17] China’s lack of animal welfare legislation and controversial traditions have been prominent in worldwide news. As the world’s most populous country and thus a nation with influential power, arguably China has a duty to develop this area of law.

 

Nevertheless, the aforementioned animal welfare laws have limited value without enforceability and accountability mechanisms. As such, despite certain countries appearing ahead of others in terms of animal protection, in reality their position is determined by a number of factors. It is clear on a global scale that countries have far to progress to have the law reflect the scientific research.

 

In light of the EU’s progressive approach to reflecting animal sentience within the TFEU (which appears to have had a positive effect on the animal welfare legislation of member states), there is perhaps a duty to implement a similar provision internationally. The only international law currently relating to animal welfare is the World Organisation For Animal Health (OIE)’s Terrestrial Animal Health Code and Aquatic Animal Health Code.[18] The OIE was created to develop international standards for animal health as a reference for the World Trade Organisation, with its main purpose to prevent and control diseases in animals.[19] Each OIE member state (currently 182 countries)[20] is required to incorporate the abovementioned codes into its national legislation.[21]

 

Despite these international provisions advancing the safe trade of animal products for human consumption, there is a lack of international law protecting animal welfare and recognising animals as sentient beings. In 2015, the United Nations (UN) set a 15 year timeframe for the Sustainable Development Goals (SDGs) aiming to promote economic prosperity, social inclusion and protection of the environment. The SDG Political Declaration includes substantial reference to the importance of animal protection.[22] World Animal Protection, an international organisation  “mov[ing] the world to protect animals”, who have consultative status at the Council of Europe and collaborate with the UN,[23] have been actively engaged in defining the SDGs and are aiming to secure a Universal Declaration on Animal Welfare (UDAW) to be backed by the UN.[24] The draft UDAW states at Article 1 that “animals are sentient beings and their welfare should be respected.”[25] World Animal Protection argues that the declaration “will create a baseline for animal care and treatment that every nation in the world can work towards.”[26] However, the declaration is still in discussion and draft stages. It is not clear whether the UN will implement the declaration, and even if it is implemented, it will not be legally binding in nature.

 

International law therefore does not govern animal welfare to the extent necessary given our knowledge of animal sentience. Although a number of nations implemented provisions recognising animals as sentient beings, the majority of the world is far behind. Many countries lack any animal welfare legislation, failing to reflect scientific evidence. The plethora of research on animal sentience has shown, to mention a handful of examples, that chimpanzees can be generous; that mice, rats and chickens demonstrate empathy; that several species show optimism and pessimism; that sentient animals experience pleasure and happiness.[27] Animals are not merely “things”, and as such animals should not be treated as things. Legislation on this issue is outdated and requires expansion.

 

The UDAW would be one positive development in international law and appears to be gathering support, with OIE claiming the backing of over two million individuals and 40 governments.[28] Sceptics have argued that the UDAW wording is “too vague to generate any significant improvements in the animal welfare laws” and embodies “‘the philosophy of animal welfare’ … rather than setting precise standards”.[29] The concept of recognising animal sentience in law rather than adopting specific standards may be a broad and philosophical one; however, such a concept is incredibly important for changing the mindsets of individuals and nations. Precise standards developed on the basis that animals are sentient beings will be more effective in providing the protection animals deserve and require.

 

– By Grace Hudson, Trainee Solicitor

 

[1] Helen Proctor, “Animal Sentience: Where Are We and Where Are We Heading?” (2012) Animals 2012, 2(4), 628-639

[2] ibid

[3] Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ C115/47, art 13

[4] ibid

[5] French Civil Code, art 515-14

[6] The Walloon Code of Animal Welfare Code, art 1

[7] Austrian Civil Code, art 285; Czech Civil Code, section 494; German Civil Code, section 90a; Dutch Civil Code, art 3:2a; Civil Code of Catalonia, art 511-1

[8] Basic Law for the Federal Republic of Germany, art 20(a)

[9] Austrian Civil Code, art 285; Czech Civil Code, section 494; German Civil Code, section 90a; Dutch Civil Code, art 3:2a; Civil Code of Catalonia, art 511-1

[10] The Environment, Food and Rural Affairs Committee, “Pre-Legislative Scrutiny of the draft Animal Welfare (Sentencing and Recognition of Sentience) Bill 2017: Government Response to the Committee’s Second Report” <https://publications.parliament.uk/pa/cm201719/cmselect/cmenvfru/984/98402.htm>

[11] Moldova Civil Code, art 287; Swiss Civil Code, art 641a

[12] The Global Animal Law Project, “ANIMAL LEGISLATIONS IN THE WORLD AT NATIONAL LEVEL” <https://www.globalanimallaw.org/database/national/index.html> accessed 10 March 2019

[13] Civil Code of Quebec, art 898.1; Colombian Civil Code, art 655; Long title to the Animal Welfare Act 1999 (NZ)

[14] The Civil Code of the Azerbaijan Republic, art 135.3

[15] Constitution of India, art 51A

[16] The Global Animal Law Project  (n 12)

[17] ibid

[18] The Global Animal Law Project, “ANIMAL WELFARE STANDARDS AT INTERNATIONAL LEVEL” <https://www.globalanimallaw.org/database/international.html> accessed 10 March 2019

[19] World Organisation for Animal Health, “International Standards” <http://www.oie.int/en/standard-setting/overview/>  accessed 10 March 2019

[20] World Organisation for Animal Health, “The 182 OIE Members” <http://www.oie.int/en/about-us/our-members/member-countries/> accessed 10 March 2019

[21] World Organisation for Animal Health (n 19)

[22] World Animal Protection, “UN incorporate animal protection into 2030 Agenda for Sustainable Development” (25 September 2015) <https://www.worldanimalprotection.org/news/un-incorporate-animal-protection-2030-agenda-sustainable-development> accessed 10 March 2019

[23] World Animal Protection, “World Animal Protection Governance” <https://www.worldanimalprotection.org/world-animal-protection-governance> accessed 10 March 2019

[24] World Animal Protection (n 22)

[25] The Global Animal Law Project, “DRAFT DECLARATION ON ANIMAL WELFARE AT UNIVERSAL LEVEL” <https://www.globalanimallaw.org/database/universal.html> accessed 10 March 2019

[26] World Animal Protection, “Our Beliefs” <https://www.worldanimalprotection.org/take-action/back-universal-declaration-animal-welfare?from=uk_en&_ga=2.176724709.1357774730.1551731923-517016196.1551731923> accessed 10 March 2019

[27] Helen Proctor (n 1)

[28] World Animal Protection (n 26)

[29] Miah Gibson “The Universal Declaration of Animal Welfare” (2011) Deakin Law Review Volume 16 No 2, 539

 

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