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Una muestra de la realidad: Abandono, maltrato y desprotección de los animales en Perú

Paola Macassi, lawyer of the Peruvian non-profit association Animalistas Sin Fronteras and attendee of the II Global Animal Law Conference, talks about the situation of stray dogs in Lima, Peru and gives an introduction to the existing laws in this interesting video.

Featured Speakers #4

How Litigation can be Used to Protect Animals

Joyce Tischler
"the mother of animal law"
www. aldf.org

The social movement has always been trying to change our societies, but the momentum for change has never been fast and straight forward. So how do we change this dynamic? How do we create short term victories and long term changes? Social activists have a very long history in creating an integrated approach to change and the tools to this mean are three.

The first tool is public outreach; the second legislation; the third is litigation. Litigation is often called public interest litigation and it is the tool to make tool number two more dynamic, since legislation often remains on paper. Suing is not easy, progress is very slow, a lot of law suits are lost, and it is in general not a very attractive option. Litigation is often dismissed as something that only Americans do and that it does not apply to the rest of the world, but it is not true; some very successful lawsuits of other countries show how litigation can be a tool also outside the USA. So if there is no law what do you do? You use litigation. Hundreds and hundreds of lawsuits have been and are being filed in the USA. But the United States is not the only country. We have some examples coming from:

1. The Israeli Supreme Court (the association NOAH to ban foie gras in Israel, one of the largest world producers of this product);

2. East African Court of Justice at Arusha (the african Network fro Animal Welfare against the paving of a road across the Serengeti National Park, Tanzania);

3. Supreme Court of India (the Animal Welfare Board of India claiming the cruelty of Jallikattu bull fighting against human beings and bullock-cart races).

To conclude we can affirm that the concept of litigation is confined to the USA is false. This practice should be undergone more often when and where possible around the globe.

Martina Pluda
Communications Officer
Master in Animal Law and Society
Universitat Autònoma de Barcelona

Featured Speakers #3

An Idea for Animal Rights, a Path for Animal Welfare

Prof. David Favre

What is a rights issue and what is a welfare issue? This is important to differentiate. One critical piece of the puzzle for animal welfare is the adoption of an international treaty for animal welfare because states need to have that level of force to push against them to enforce animal welfare standards. Prof. Favre has already started to draft this treaty 20 years ago and it is actually already complete, we simply need someone to sign it. But the core in this issue is state sovereignty: every state has the right to decide autonomously. Giving up some of their sovereignty allows them to be part of a larger community; will we soon be in the position where States will want to become a community for the sake of animal welfare? This is the real threshold barrier. 

The structure of Prof. Favre´s treaty (similar to CITES) is the one of an umbrella treaty, which is a very basic treaty document, underneath which you then build more complex language. So at the moment Prof. Favre´s treaty has 4 protocols, which have to be signed by all members, and in each protocol there are anexes, which can be done by majority vote. The policy and principles try to take in consideration as many States as possible. The definitions included are the ones of "animal", "wildlife", "domestic and companion animals"; the choice regarding the content of definitions is a policy choice. Within the language of the treaty we have to consider that it has to be simple and inoffensive. One of the hooks though is that you just can´t sign on the general language without signing the specific protocols too. In the protocol much more detail can be provided, such as in the case of the general definition of companion animals and the deepening of such definition in the protocol. Furthermore anexes include future objectives related to what is stated in the protocol. The Future of this treaty is uncertain, it is all about the political power and the communication power. 

What about animal rights? What is the difference between welfare and rights? Rights is a more philosophical dimension and regarding rights we have already decided that animals are ethical subjects. The barrier to change is the property status of animals. There are three different kinds of property in the world right now: real, personal, and intellectual. The majority probably agrees that animals must have some relationship to humans in order to safely exist within the human society. But the question is what is the future of animals in relation to property? Do we want them as non property? Do we want to establish the relation guardian/companion? Prof. Favre thinks that we already started the process of separation: animals are different from property. Dogs are not the same as books. Still, his hope is to make a clearer separation: living (animals) and non-living (books, tables, cars, etc.) personal property. So he hopes we will end up with now 4 kinds of properties: real, personal, intellectual, and LIVING. The Swiss have moved the closest to this definition. Art. 120 of the Swiss Constitution states that it shall take in consideration the dignity of living beings; art. 641a of the Swiss Civil Code states that animals are not objects. Switzerland could be a good starting point for the treaty.

Last but not least we launch a new idea: what if we allow individual owners to give partial self recognition to the animals they own? Actually this can only work in the common law systems. For example you have the full title to a chimpanzee and acknowledge the chimpanzee an equitable title. 

Martina Pluda
Communications Officer
Master in Animal Law and Society
Universitat Autònoma de Barcelona

PANEL #8 – Cultural Perspectives

In this afternoon´s panel Prof. Olivier Le Bot talked about "The Limitation of Animal Protection for Religious or Cultural Reasons" as a study of the articulation between social considerations such as cultural traditions and protection in animal law, in other words to examine the legislator´s choice: accept the abuse or prohibit it and can this choice be questioned/contested by the judge? 

Prof. Le Bot´s study is divided in two dimensions, summarized as follows:

  1. Dimension: the law forbids animal abuse committed in the name of tradition
    • Ritual Slaughter
      • 1st solution: the most protective solution (Austria VfGH 17/12/1998): prohibition;
      • 2nd solution: less absolute (like in the USA);
      • 3rd: tolerant (France).
    • Hunting with hounds 
      • Ban: in Scotland: protection of wild mammals act adopted on 13th Feb. 2002; in Britain and Wales by the Hunting Act of 2004, applicable since 18th Feb. 2005
      • EU Court of Human Rights: ECHR 24/9/2009, Friend and Others v. the UK, n. 16072/06

2. Dimension: the law authorises animal abuse on the basis of a tradition
    • First situation: a superior norm protecting animals exists
      • Legislative norm (traditional force eating violates the Animal Protection Act: a lot of pain for little pleasure, eg. foie gras);
      • International norm;
      • Constitutional norm.
    • Second situation: the absence of a superior norm makes the question of a differentiation arise.

To continue the panel Natasha Dolezal spoke about "The Kenya Legal Project"

This year the Center for Animal Law studies at Lewis & Clark Law School and the Africa Network for Animal Welfare introduced the Kenya Legal Project, which brought law students for three weeks to Kenya to study the implications of local wildlife and cruelty laws and assist Kenyan lawyers and professionals to develop and enhance the legal protection of animals. As just mentioned there are three essential components to the program: 1. create an educational opportunity for students; 2. establish an international professional exchange program for Kenyan attorneys and judiciary officials; 3. assist local efforts by providing animal legal education, visiting law and vet schools, talking to faculties to help them develop courses, giving guest lectures, offering international LL.M. scholarships.

The program provides both classroom learning and fieldwork on the premises, addressing problem solving and strategy development in a completely new cultural context, bearing in mind that there is no absolute and universal right way. Participants are exposed to the complexity of real cruelty issues such as poaching, resource scarcity, and institutional infrastructure limitations and meet professional of the field. 

To know more visit: www.kenyalegalproject.com

The last speaker, Prof. Gustavo de Baggis from Argentina addressed "The Dilemma of Bear Arthur":

The issue presented originates in Argentina, with the current ethical and judicial dilemma between non-governmental animal protection organisations, state institutions, and public in general, because of the possibility to move the polar bear Arthur from the Mendoza zoo to a polar bear reservation in Canada, due to his poor living conditions in a climate zone not appropriate for the animal. Mendoza, the most important city in the Argentinian Andes, has a desert-like climate, with 8° in winter and 38° in summer. Arthur, a polar bear, has lived in Mendoza for 21 summers and he belongs to the fifth generation of his family which has been born in captivity. Last summer, perhaps the hottest in the last decades, Arthur suffered the heat and his critical condition became target of animal protection activists. As a result the precarious situation became known and the finger was pointed against the zoo for the lacking of adequate infrastructure to keep an animal coming from the Arctic.

The situation in this case is similar to many others worldwide, caused by the change of paradigm as regards animal protection and is analysed by Prof. De Baggis from a common point of contact between Arthur, the bear in captivity, and two paradigmatic figures such as the slave in Rome and the abandoned child or the child in crime situations in the ancient Argentinian legislation. 

Even though we have to acknowledge the gap in time and space, we can affirm that not only the slave, in old times, but also the child, in modern times, are considered imputation objects to law, without being considered full of rights (as the animals from ancient times to the present days). This hypothesis allows us to foresee in what way the human being has been changing his judicial thought in different times and historic contexts and how now in countries such as Bolivia and Ecuador, constitutional rank has been provided to animal protection. 

To find out more about the issue of bear Arthur visit:


Martina Pluda
Communications Officer
Master in Animal Law and Society
Universitat Autònoma de Barcelona

PANEL #7 Young Scholar Presentations

The Young Scholar Presentations have been presented by Steven Wise, the chair of the panel and president of the Nonhuman Rights Project.

The First presenter is Moe Honjo. She just finished two LL.M. degrees, in animal law and in environmental law. She has plans to continue her education an will be seeking a PhD in Japan. She spoke about Japanese animal law and the dramatic changes to animal shelters in Japan.

Japanese culture and Animal Shelters in Japan
Moe believes that the law should be the vehicle used to help increase animal welfare in Japan. Recently, the Japanese Animal Welfare Act was amended to include provisions for animal shelter staff.

History of animal shelters in Japan
Originally, animal shelters were built to kill animals. The shelter Moe visited in Kyoto had many dogs kept together in one cage. There were only 4-5 rooms and the facility was built so that no interaction between people and animals had to take place. This was because of a fear of rabies transmission. However, rabies has not been found in Japan for almost 60 years.

In Kyoto, there are no facilities for cats, only dogs. Thus, almost 70% of animals put down in shelters are cats. Because the shelter must put down so many animals, both cats and dogs, they do not have information about the specific animals in the shelter for fear of public criticism. This makes it hard for individuals to recover lost pets or find suitable companions. Some cities have started to rebuild their animal shelters. After 20 years of discussion on whether to rebuild, one shelter has been updated with both cat and multipurpose facilities.

Neko Cafe
Cat café’s have grown in popularity in Japan. It began as a business idea, but now they are turning into cat shelters. Normally, shelters are not built in middle of city because of dog barking, however cat café’s are okay since cats do not bark. Cat café’s are a place to relax, read books, and pet cats. To enter, one must pay a fee that allows the visitor to stay for a set duration of time. When the time is up, the visitor must purchase a drink or pay more money to stay longer.

Moe’s Book
Her book mainly discusses companion animals, but also discusses other animals in captivity. She hopes this will help expand Japan’s knowledge about other animals and see similarities between the pets they love and animals such as pigs and cows.

The second speaker is Lois Lelanchon, who is a PhD candidate at the UAB and works for Humane Society International.

He is speaking about the comparison between French and Spanish animal law. Spain and France are both civil law countries and animals are either considered as moveable or immovable assets depending on where they are located. The exception is in Catalonia, Spain where animals are not considered things, but there is no expression of what they are considered to be.

Wild animals living in the wild are not covered by anti-cruelty provisions in either France or Spain.

The definition of domestic animal in France is an animal that lives under human surveillance and not only under his roof. The list of domestic animals is based on artificial selection, and not on the fact of keeping the animal.  On the other hand, in Spain, it is not as clear what animals are considered “domestic.”

In France, if someone, in public or otherwise, seriously maltreats, including sexual maltreatment, towards an animal, or commits an act of cruelty on any domestic or tame animal, or any animal held in captivity,  it is punishable by two years imprisonment and a 30,000 euro fine. While in Spain, is someone unjustifiably maltreats a domestic or tame animal, causing it death or injuries likely to cause severe physical harm, it is punishable by only a 3 months – 1 year in jail.

Bullfighting in France was introduced in 1853 and gradually expanded. The maltreatment of domestic animals in public is prohibited, however the law was not enforced and then in 1951 bullfighting was specifically exempted from the cruelty law. The courts in France have upheld the practice of bullfighting. It is not only lawful but constitutional as well. There are 66 towns in France were bullfighting is specifically allowed.

In Spain, bullfighting’s origin is unclear. Animal protection laws do not cover bullfighting and bulls are not considered domestic animals. Bullfighting falls under “lawful shows” and the severe maltreatment that bulls endure is “justified” and therefore outside the scope of the cruelty law. Catalonia and the Canary Islands have been banned bullfighting, however it is still legal in Spain generally.

Cock Fighting
Cock fighting is also allowed in France and Spain. In France it has been lawful since 1964 and is a tradition in local communities. The criminal provisions in France do not apply to cock fighting.
In Spain, cock fighting is allowed in 3 autonomous communities: the Canary Islands, Murcia, and Andalusia.

We need to bring coherence between civil and criminal legal standards in these countries to legally acknowledge sentience of animals. Wild animals should be included in the scope of anti-cruelty laws. There should also be a legal recognition of their sentience. Moreover, penalties need to be increased for animal cruelty and the laws that exist need to be enforced. Cruel, but lawful practices severely undermine the value of animals. Education is necessary to increase awareness of these issues and bring about change.

The next presentation was by Christina Becares, a professor of UAB and a graduate in law and criminology. She completed the master’s program in Animal Law & Society and is part of the research group. Presenting with her is Maria Gonzales. She has formed a law firm exclusively dedicated to animal law in Spain. They will be giving an update of Spanish Animal Law.

Reports of dog abuse in Spain are always increasing. In 2008, there were 7,327 and in 2013, there were 13,809 reports of dog abuse. The current situation and challenges in Spanish law include: (1) that the law considers animals as things; (2) that animals receive different protection according to the autonomous community where they are located; (3) the practice of public administrations are not utilized or effective; and (4) jurisprudence about animal law legislation is still undeveloped and disorganized.

Legal Treatment As Things
The criminal code does not punish animal abuse when animals do not suffer or if the act is justified. Spanish courts are still limited in considering animals’ interests because they are considered “things” under the law. However, there has been some progress in Spain. For example, Catalonia has declared that animals are not things. Several autonomous communities recognize animals as sentient beings and in almost all communities live animals cannot be used for prizes, rewards, or publicity.

Animal Protection Level Depends on the Region
There is a different animal protection act in each autonomous community in Spain. For example, the deadline to recover a dog in Galicia is 20 days, while in Murcia, the deadline is only two days. Fines for infractions also vary greatly between communities. Progress has occurred with the new National Act for Commerce and Responsible Possession of Dogs and Cats, which bans the mutilation of animals, the sale of animals at pet shops, regulates donation contracts for animals, as well as for the transport of dogs and cats.

Administrative obstacles for animal protection
There is a lack of awareness about these issues, competency questions due to the complex political situation in Spain, difficulties with precautionary measures, reluctance to impose high fines, and administrative inaction. Public discouragement should continue to put pressure on authorities and institutions to act and prosecute abuse.

Increasing Jurisprudence still needs to be consolidated.
The general principle in Spain is that judicial interpretations are limited to the law in the civil law system and are bound to follow it. There has been progress in comparing abandonment of a child and of a dog by a judge. Additionally, sentences have been including secondary measures such as banning the abuser from working with animals, as well as acquiring or using them. There has also been recognition of moral damages when companion animals are injured or killed. Additionally, animal abuse can be an act of omission, as for the willful neglect to care for an animal.

The legal treatment of animals needs to reflect the treatment of animals according to their nature, as sentient beings. The legislative development of the criminal code and the National Act for Commerce and Responsible Possession of Dogs and Cats has been good, however there are areas that still need to be improved, as with the use of animals in entertainment, which is completely allowed. We must increase social awareness and encourage public administration to take action to benefit animals. However, we can see that animal law in Spain is progressing and we must continue this trend.

The final speaker was Samuel Leon Martinez. His degree is from the National Autonomous University of Mexico (UNAM) and he is currently pursuing a PhD. He has been published in the Harvard Law Review, as well as in other prestigious journals. He spoke about the progress and challenges of animal law in Mexico.

In the early 20th century, wetland protection was enacted to prevent the extinction of species. Today, local laws governing the protection of animals require reporting of animal abuse within 36 hours. An official Mexican standard law from 1995 regulates the humane slaughter of both wild and domestic animals. For example, food animals must be rendered senseless prior to death by electrodes, a captive bolt gun, or other means.

Federal laws regulate and protect animals in Mexico. Official transportation standards were enacted in 1995 detailing animal welfare during transportation. For example, chickens cannot be transported more than 100 per cage. It also provides for intervals of rest during long journeys for agricultural animals.

The law still does not regulate the sale of animals on public roads, the proof of purchase for pets, registration of domestic animals, micro chipping and vaccinating animals. There has also been strong resistance to regulate the breeding and selling of animals. The public market sells many wild animals such as turtles, eagles, serpents, etc., however there is no regulation over what animals are sold in these markets or where they come from.

In 2014, a law on protocol policing was enacted defining animal welfare as the state in which the animal has satisfied its health, behavior, and psychological needs, and provides that animals should be guaranteed the five freedoms determined by the Brambell Committee.

There is a total ban on animal circuses in 5 states, with 9 others that have enacted restrictions on animal circuses. There are many cases of animal cruelty in circuses, from starvation to amputations. PROFEPA implemented a national program to inspect circuses in 2013 and 2014. Out of the 63 circuses inspected, 38 had irregularities, and 96 animals were confiscated.

Regulations on bullfighting
3 states with municipalities have enacted bans;
5 states have declared bullfighting as a cultural heritage;
Only the state of Sonora has enacted a total ban on bullfighting.

Danielle Holt
LL.M. Animal Law
Lewis & Clark 

PANEL #6 Agricultural Animal Issues

Chair of this afternoon´s panel was Enrique Alonso, Permanent State Councillor of Spain.

The first speaker was Prof. David Cassuto on "Free Speech and Viewing Agricultural Animal Facilities":

What is an Ag-Gag Law? It is a law that seeks to criminalise the recordings, possession or distribution of material taken undercover from agricultural facilities. Of course producers do not want us to know what happens on their farms - and we all know what cruelties are being perpetrated - so they lobby fiercely the legislator to achieve the passing of laws to restrict and criminalise the exposure of such material. These abuses are not categorically different and we are talking of 10 billion plus animals every year.

The Ag-Gag Laws movement started in the 1980s. Rather than changing their behaviour, the agricultural facilities pushed to change the ability to know about them. In the USA, Iowa and Utah  had the first Ag-Gag Laws, but soon other states will follow. The interesting fact is that most of this behaviour was already illegal. You cannot go in a private facility and start taking pictures, you cannot misrepresent yourself in the hiring process, and so on. So why is it more illegal? The objective is to make it harder for activists to do what they do. With Ag-Gag Laws we set  higher penalties targeting specific content based behaviour. Actually the American Constitution protects the freedom of expression, so states try to tiptoe around these constitutional principles and who draws these laws is very smart and overleaps the constitutional challenge. But why? The legislators declare that the objective to protect the agricultural industry from inaccurate representation i.e. misrepresentation by dishonest activists. And why does the industry want to protect itself? These question is connected to the following ones: so are these laws constitutional? Why are we even having this argument? Why would it make sense to criminalise a behaviour which is already criminal and actually exposes acts, which are arguably criminal? Why do have this discussion if this behaviour (exposing material is so outrageous? Well beacuse the industry is not transparent.

A further issue connected with the Ag-Gag Laws is "the victim vacuum".  We have animal cruelty laws but who is the victim? If an animal is being tortured in front of a kid, it is considered "aggravated" beacuse the child had to witness the cruelty and brutality of the act. But in agriculture these billions of tortured animals are not victims. And even if the protection should reach them, we criminalize the exposure of the cruelty the undergo, thus creating a victim vacuum. Those who are perpetrating the cruelty lobby the legislator to get protection, therefore becoming the victims. The legal system has gone mad and the constitutional question is still open (in particular the Legal Defence Fund is actively working against the Ag-Gag Law in Utah).

For more information visit Prof. Cassuto´s blog: www.animalblawg.wordpress.com

Prof. Martine LaChance "Impacts of Religious Beliefs on the Protection of Animals"

To cover this issue we have to  start with the religious references. First of all the Islamic Law sources comprise the Koran and the Sunna of Muhammad; practicing Muslims are only allowed to eat Halal food. Secondly Jewish Law sources comprise the Bible, the Mishnah, and the Talmud; faithful Jews are only allowed to eat Kosher food. Furthermore we need to mention the prohibition against the consumption of blood. Bleeding is contrary to Christianity, Judaism, and Islam because it is a religious belief that all living creatures have and the soul is transmitted by blood. Regarding the prohibition of eating the flesh of a dead or damaged animal, as long as an animal shows signs of life, it may be bled and its flesh consumed by a Muslim or Jew; the practice of stunning is not allowed according to both religions for fear that the animal might not be alive anymore while it is bled.

The religious texts are silent about the manner of the slaughter. Yet, what is generally done follows a very precise ritual, some steps of which are: ensuring that the animal is alive, the performer must be a believing Muslim or Jew, he must repeat the mandatory religious invocation, the bleeding must be performed by a sharp instrument, the performer must accelerate the bleeding as soon s the animal has been immobilised in order to avoid pain and stress, he must act carefully to ensure that the tracheas artery, the oesophagus and the jugular veins have been cut. 

The markte for Halal products representas a €400 billion business: 9 billion in the USA, 4 in Germany, 3,5 in France and Great Britain. On the other hand the market for Kosher products represents a business of €147 billion in the USA alone; €5 billion in Europe. In spite of the economic element the commune position if many states shows that religion is not a sufficient justification to such animal suffering. Examples of countries that prohibit ritual slaughter without stunning are Australia, New Zealand, Switzerland, and also across the European Union.

The next speaker was Senior Researcher Brigitta Wahlberg, who talked about "The Regulation of Commercial Turkey Operations in Finland":

In this issue the difficulty is represented by the unclear understanding of the Finnish legal base to establish the competence, related to the legal status of poultry.

In Finland, during 2004-2007, 16 administrative actions were taken by the regional animal protection authority and local veterinarian offices (State Provincial Office) for turkey meat inspection control at slaughterhouses. Substantially the cases referred to the transportation and keeping of turkeys in a way that caused them undue pain and suffering (too long in the cage, too many animals per load, too cold/hot, too little space). Nine of these cases went up to the Administrative Court and three of them to the Supreme Administrative Court for final judgement. The Court confirmed the administrative decisions and interpretations of the law made by authorities were legally valid. During 2006-2007 four of the cases landed before the General Court for judgement. In two cases the slaughterhouse was punished for animal welfare offence, yet, none of the lawful decisions has been pu tinto effect. Why? The main arguments are two: the first one is that there is no scientific proof that this method causes undue suffering (of course the economical interests of the industry are a tool of massive lobbying) and the second one states that the position the turkeys have to assume in the transportation box is a natural low standing position of the animal.

Nevertheless, as a conclusion we can say that judicial decisions cannot be based on natural science or on the lack of it. The decisions have to be based on the law, and the law and legal understanding have to be changed over time. The future step must be to declare animals as legal subjects and grant them constitutional rights.

The final speaker was Prof. Peter Sankoff, who introduced the "Canadian Codes for Regulations of Agricultural Animals":

Animals in Agriculture in Canada: animal advocates have mostly won the battle over the question about whether we need regulation (we do), but this takes us to a more difficult level—a battle over control over regulatory process:

What message will we get from the regulatory process and how will it be enforced? Codes are necessary and good because general duties are the alternative and provide a general duty of care.
The role of the Codes:
They are not laws and have no law making power
They are partly educational.
They are designed to set a national understanding of care requirements

Strengths of Canada’s Codes:
They are better than nothing at all and they create a platform to engage in public dialogue. This changes the nature of the discussion, which is beneficial. Standards are created as a starting point for future structured discourse and change. These Codes eliminate the worst practices. They also create a scientific record, however they are not bound to follow what the science says is best. They guarantee industry “buy-in.”

Weaknesses of Codes:
They create an illusion of a neutral, scientific driven process conducted by the government, but they are written by the industry. The government, however, provides funding.
They create an illusion of a legal process. The Codes have no independent force and some provinces refer to Codes as providing “defense” to farmers who comply, while other jurisdictions may see them as evidence of reasonableness.
Codes should be mandatory in every jurisdiction.
The decisions are made by an “unbalanced table” consisting of many producers and very few animal welfare advocates/veterinarians.
Code development committees make value based decisions.
There is a 60 day public commentary process and there is no mandatory reporting of public comment or reply to the public.
There is no government oversight in any part of the process

General duty: benefit of the doubt always goes to the accused and thus they always win. It is almost impossible to penalize someone under a general standard. Prosecutors are hesitant to prosecute under general duties and judges are hesitant to convict

National Farm Animal Care Council (NFACC) is the agricultural industry made up of 90% of industry organizations and only 10% humane societies/veterinarians. There is no government involved in NFACC, and thus no government oversight. The industry is thus not accountable to the government.

Martina Pluda
Communications Officer
Master in Animal Law and Society
Universitat Autònoma de Barcelona

PANEL #5 Animal Issues Around the World

Day two of the Global Animal Law Conference starts with Prof. Heron José de Santana Gordilho introducing Panel #5, which will cover international topics from South Africa, Spain, and Australia. 

The first speaker, Prof. David Bilchitz, talked about "Animal Interests and South African Law: the Elephant in the Room?":

"At time, and in fear, I have wondered whether I should concede equal citizenship of our country to the leopard and the lion, the elephant and the springbok, the hyena, the black mamba and the pestilential mosquito. A human presence amongst all these, a feature on the face of our native land thus defined, I know that none dare challenge me when I say - I am an African." (Mbeki, 1996)

Although these inspiring words were pronounced, the drafters of the South African Constitution  1996 included no express mention to the interests of animals. So any protection must be implicit in the exiting provisions; this oblique approach has set the trend for the relationship between the law and animals.

If the interest of animals continues to be ignored, legal actors contribute towards the blindness of many human beings to their value and importance, limiting what could be achieved in advocating for better protection. Therefore, litigation and advocacy need to develop a strategy to ensure that animal interests are expressly mentioned by the legislator.

Will there be a constitutional revolution for animals? Much is unexplored in the new constitutional framework for animals (access to information, administrative justice). The constitutional revolution is sought to shake up the legal system and re-consider some of its basic assumptions. The CC has clearly emphasised the need to challenge arbitrary categorisations and to protect the vulnerable in society. Implications of these important holdings have not properly been applied to animals and the protection of their interests. It is time for a change!

The second speaker is Prof. Giménez-Candela, talking about "How Increasing Awareness of Animal Sentience Impacts Animal Law":

The three main questions are:
1. What is the importance of the reclassification of animals as things to animals as sentient beings?
2. Which legal texts have introduced animal sentience as a policy strategy?
3. What can we hope from the cooperation between veterinary scientists and jurists?

The most European codes still classify animals as things. The idea that animals as things can be used and abused comes directly from Roman Law. The concept to "have the most absolute use" is founded in the Napoleonic Code. We are now in a phase or reconceptualisation of animals as sentient beings, which reflect the scientific advances and citizen pressure. The expression of sentient being as a standard for regulating animal well-being is being finally implemented in many European legal texts. It is the key to interpret and analyse reality and apply this reality to the legislation. The real application of this expression is still weak though.

The transition to sentient beings is centred, or to better say, was born with the art. 13 of the Treaty of Lisbon in 2009. For the first time animals are recognised in this text as sentient beings, before they were considered goods. Following this there are 3 schools to interpret art. 13 of the Treaty of Lisbon. According to the first point of view the treaty does not contain any constitutional elements. In contrast, the European Court of Justice has recognised the treaty as having constitutional elements. Thirdly, in view of other authors it is considered a post constitutional treaty. Consequently the legal interpretation shows that is is a treaty with constitutional elements and animal welfare is an ethical element in the treaty of Lisbon. Some countries have already (even before the treaty) transformed animals from things to non-things, such as Austria (ABGB 1998, Constitution 2004), Germany (BGB 1990, Constitution 2002), Switzerland (BGB 2000, Constitution 2004), and Catalunya.

Very important is the relation between veterinarians and lawyers. Why? If science has created the concept of sentience and we, the jurists, have adopted this concept in a legal context we have to pursue more cooperation between us. In science the discussion is oriented to find the best living conditions for the well being of animals. On the other hand, legal discussions do not worry about this optimum, rather on which conditions go over the frontier of criminal acts, of civil law violations. We ask ourselves what goes beyond the red line. So the difference between science and law is that science seeks the good conditions, law the bad ones; we have to gap this bridge. Science focuses on the animal, law more on the political process, but this process must take into account social values (socially acceptable levels of animal welfare). The fair relationship between humans and animals is one of these values. Scientist can provide significant aid to the debate by providing accurate information about animal welfare; lawyers can contribute by providing flexible concepts.

The third speaker, Prof. Alex Bruce, introduced the problematic of the "Australian Live Animal Export Industry".

What animals does Australia export, where and to what scale?
Australia is one of the world´s largest exporters of meat. The reason why is that the Asian market is booming, causing a huge demand for meat and Australia is trying to cash in to export more animals. The main importers are Indonesia (at number one), China, Israel, Vietnam, Malaysia, Russia, Philippines, and Japan. But most of these countries do not have the infrastructure to stock frozen meat and in many muslim countries they want only live animals because of ritual slaughtering, so this  is why Australia exports live animals. 68% of these exported animals are sheep, followed by beef, and goats. The total value of the live export is of € 520 million for beef cattle exports, € 119 million for sheep, and of € 55 million for goats.

Because of its geography the issues arising are many. First of all the distance to destination represents a big difficulty for the animals, related to the difference of hemispheres between Australia and importing countries, causing heat stress and a lot of on board mortality. There are also difficulties in creating animal welfare standards in importing countries, which in many cases do not comply with the international standards. Most animal voyages last weeks, animals are crammed one on top of the other, they are fed a pellet mixture before going on board, causing a lot of sickness on board, are often not fed anymore, suffer from the heat, and are then brutally treated upon arrival.

Australia has inherited UK laws and there is no federal constitutional power to regulate animal welfare, therefore there is no Federal Animal Welfare Act. It is responsibility of the 8 states to regulate this matter. The Australian legal structure is a complex framework of hard and soft law. with a very uncertain relationship between Federal Statutes, Orders and Standards.

So the issues arising are the following:
The regulatory complexity;
The geographical distance;
The intense media scrutiny;
Different standards of importing countries.

To conclude the question is: why is there so much resistance to change? Cultural inertia! Australia has a long tradition in animal agriculture, which is embedded in the population´s psyche.

Martina Pluda
Communications Officer
Master in Animal Law and Society
Universitat Autònoma de Barcelona