The dynamics of wild animal welfare law

Journal of Environmental Law

Volumn 9, Issue 2, 1997, Pages 287-301

  Harrop, Stuart R ^a,b  

^a UNIVERSITY OF KENT   (United Kingdom)

^b Roy Soc Prev Cruelty to Animals   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ANIMALIA;

ENVIRONMENTAL LEGISLATION;

UK;

EID: 0031420291     PISSN: 09528873     EISSN: None     Source Type: Journal    
DOI: 10.1093/jel/9.2.287     Document Type: Article

References (77)

1. Pursuant to the Convention on International Trade in Endangered Species of Flora and Fauna Washington, 3 March 1973, 993 UNTS 243 ('CITES'); the extent to which a species may come into international trade is regulated by reference to the appropriate Appendix within the Convention. The minke whale (Balaenoptera acutotostrata) is in Appendix 1 and thus, in effect, no international trade is permitted in the species or its products. In 1995 Norway was seeking to downlist the species to Appendix 2 to permit limited trade at a sensitive time when a referendum was taking place in that country to decide whether Norway should join the European Union. The conservation lobby and the animal welfare groups made strong representations to the European countries (which vote together at CITES) and indeed, as a result of a number of factors, the European vote at the 1995 Conference of the Parties of CITES moved from abstention to opposition which contributed to causing the Norwegian proposal to fail.
2. This thesis concerning this new risk to the status of the already beleaguered blue whale (Balaenoplera musculus) was referred to in the DICE Lecture 1996/7 'Conserving the World's Largest Mammals: Elephants, Whales and River Horses', 18 February 1997, University of Kent at Canterbury by Dr Richard Laws, former Director of the British Antarctic Survey.
3. Oxyura leucocephala.
4. The ruddy duck (Oxyura jamaicensis) derives from feral stock. The main source population is in the United Kingdom following escapes from collections in the 1950s. The bird has spread to Europe and is threatening the population of the white-headed duck through hybridisation since the ruddy duck male is more successful in mating with female white-headed ducks than is the male of that species. To save the species, therefore, conservationists believe that widespread culling of the unnaturally introduced ruddy duck in its source population, the UK, must take place. (Marti, 'Red Data Bird White-Headed Duck' World Birdwatch 15/3).
5. The author was present at the meeting and recalls that the precise language used by the relevant MP, in the illustration of the point, was rather more graphic than would be appropriate to set out herein. It should be pointed out that the demise of the white-headed duck could not have been so enjoyable since the males of that species were being deprived of the pleasure appropriated by the ruddy duck males!
6. The electric lance has been an issue, in the IWC context, since 1992 and regularly on the agenda of IWC meetings where a number of Commissioners have voiced their concern about its inhumane nature. In 1996 a proposal to ban the use of the lance failed by a narrow margin; the proposal would have required an amendment to alter the Schedule to the International Convention for the Regulation of Whaling (161 UNTS 72) which, pursuant to Article III.2 and V thereof, requires a three-quarters majority of those members voting.
7. See the preamble to the International Convention for the Regulation of Whaling and Lister: International Wildlife Law (1985) Grotius, chapter 2 for a full analysis of the purpose and derivations of the International Whaling Commission.
8. CITES Articles III.2(c), 4(b); IV.2(c), 5(b), 6(b); V.2(b) and particularly VIII.3 which states, inter alia, that: 'The Parties shall ensure that all living specimens, during any period of transit, holding or shipment, are properly cared for so as to minimise the risk of injury, damage to health or cruel treatment.'
9. CITES Articles III.3(b) and 5(b).
10. CITES Article VIII.4(B) and 5.
11. See for a full history of Resolutions adopted in respect of welfare during transport: Wijnstekers, 'The Evolution of CITES 1992', 3rd edn, para 37.
12. ISO TC191, a committee of the International Standards Organisation, failed to develop standards to measure the comparative humaneness of traps after more than nine years of work and at its Denver meeting in 1995 decided to suspend that portion of its activities. However, the Committee has now produced draft standards for trap testing methodology which will be reviewed by the member countries of that committee. Those draft standards are available from the relevant national member organisations of the International standards Organisation. The draft standards are Doc no 120, Methods for Testing Killing Trap Systems on Land or Underwater and Doc no 121 Methods for Testing Restraining Traps. (The author was a delegate (representing Eurogroup for Animal Welfare) at the last two meetings of ISOTC191 (Denver and London) and on both occasions was Chairman of the Drafting Sub-Committee.)
13. At the time of writing the text of this proposed international agreement is not publicly available but if signed it would represent the first international agreement dealing directly and predominantly with animal welfare.
14. Council Regulation (EEC) 3254/91 OJ EC 1991, L 308/1.
15. Ibid, Article 3.
16. See generally, memoranda by the RSPCA (pp 12-15 of Minutes of Evidence)and by the International Fund for Animal Welfare (pp 15-23) and paras 93-111 (Summary of Conclusions) in UK House of Lords Session 1995-96, 8th report, Select Committee on the European Communities 'Leghold Traps' HMSO (HL Paper 73) ; Nollkaemper, 'The Legality of Moral Crusades Disguised in Trade Laws: An Analysis of the EC "Ban" on Furs From Animals Taken by Leghold Traps', Journal of Environmental Law Vol 8 at 237 and, for an analysis of the consequence of the 'new GATT' on the EC Seal Skins Directive, see Reid, 'The EC Directive Concerning the Importation of Skins of Certain Seal Pups (83/12g/EEC): its compatibility with the General Agreement on Tariffs and Trade (GATT)' European Environmental Law Review Dec 1996 at 344.
17. See generally, memoranda by the RSPCA (pp 12-15 of Minutes of Evidence)and by the International Fund for Animal Welfare (pp 15-23) and paras 93-111 (Summary of Conclusions) in UK House of Lords Session 1995-96, 8th report, Select Committee on the European Communities 'Leghold Traps' HMSO (HL Paper 73) ; Nollkaemper, 'The Legality of Moral Crusades Disguised in Trade Laws: An Analysis of the EC "Ban" on Furs From Animals Taken by Leghold Traps', Journal of Environmental Law Vol 8 at 237 and, for an analysis of the consequence of the 'new GATT' on the EC Seal Skins Directive, see Reid, 'The EC Directive Concerning the Importation of Skins of Certain Seal Pups (83/12g/EEC): its compatibility with the General Agreement on Tariffs and Trade (GATT)' European Environmental Law Review Dec 1996 at 344.
18. See generally, memoranda by the RSPCA (pp 12-15 of Minutes of Evidence)and by the International Fund for Animal Welfare (pp 15-23) and paras 93-111 (Summary of Conclusions) in UK House of Lords Session 1995-96, 8th report, Select Committee on the European Communities 'Leghold Traps' HMSO (HL Paper 73) ; Nollkaemper, 'The Legality of Moral Crusades Disguised in Trade Laws: An Analysis of the EC "Ban" on Furs From Animals Taken by Leghold Traps', Journal of Environmental Law Vol 8 at 237 and, for an analysis of the consequence of the 'new GATT' on the EC Seal Skins Directive, see Reid, 'The EC Directive Concerning the Importation of Skins of Certain Seal Pups (83/12g/EEC): its compatibility with the General Agreement on Tariffs and Trade (GATT)' European Environmental Law Review Dec 1996 at 344.
19. Articles I, III, XI of the General Agreement on Tariffs and Trade 1947. The principles in these articles are the foundations of the GATT and are repeated and reflected throughout the much expanded and comprehensive portfolio of legislation of the WTO. Of further relevance are the defences in Article XX which have, thus far, proved to have been ineffectual as a result of the various Disputes Panel decisions, the most notorious being: 'United States Restrictions on Import of Tuna' (1994), 33 ILM 839. To summarise the position, and ignoring the finer points, the effect of the GATT provisions (repeated in the WTO regime) and the existing jurisprudence of the GATT dispute panels (although non-binding on future panels) is to prohibit the use of import/export and tariff control methods to impose animal welfare standards on other GATT members in relation to the manner in which animal products are processed (i.e. farmed, trapped, hunted, used in research etc.). Therefore, the concern is that it may be difficult to uphold standards of animal welfare because such standards inevitably increase the cost of the product and the competition of cheaper imports from countries where such standards are not upheld would render internal production uncompetitive. Ultimately, in the light of the potential threats to trade interests the thesis is that the trade lobbies necessarily supported by governmental economic priorities, would prevail against those seeking to raise animal welfare standards.
20. For the position on dispute panel decisions see Understanding on Rules and Procedures Governing the Settlement of Disputes (Annex 2 to the Marrakech Agreement Establishing the World Trade Organisation) and for the obligations of the WTO to implement the new regime see Article III. 1 of the Marrakech Agreement (all within the Results of the Uruguay round of Multilateral Trade Negotiations, 33 ILM (1994)).
21. See UK House of Lords Session 1995-96, 8th report, Select Committee on the European Communities, 'Leghold Traps', HMSO (HL Paper 73) pp 28-9. Evidence of author.
22. See Harrop, Environmental Law: Wildlife Management, Animal Welfare and the use of International Trade Instruments in the Context of the New World Trade Organisation Regime XXXX, UIA Congress, Madrid, September 1996 ('UIA Madrid Conference') for an analysis of the potential pressures on the stricter domestic measures permitted under CITES in the context of the WTO.
23. Pursuant to Article 30 Vienna Convention on the Law of Treaties (81 ILM 679) it is possible for provisions of later treaties dealing with similar subject matter to supersede previous international legislation.
24. See Harrop (1997), paper delivered at Symposium, 'Trapped by Furs? The Legality of the European Community's Fur Import Ban in EC and International Law', Rotterdam, 17 January 1997, published by Erasmus University ('Erasmus Symposium') [forthcoming] for an analysis of how CITES could be theoretically relevant in the context of the endangered black footed ferret.
25. 1979, ETS 104.
26. By example UK House of Lords Report on the Leghold Trap Regulation (supra n 16) para 1, and through the implications in the preamble to the Leghold Trap Regulation.
27. For further analysis of this and other potential defences against a GATT attack in the Leghold Trap Regulation, see Harrop: papers delivered at UIA and Madrid and Erasmus Symposia (supra nn 20 and 22 respectively).
28. See Wilkins (ed), 'Animal Welfare in Europe - European Legislation and Concerns' (1997) Kluwer Law International for a general summary of all legislation and decisions of relevance and consequence including those relating to farm and domestic animal welfare.
29. Strasbourg 1976, ETS 87
30. Strasbourg, 25 June 1991, T-AP (91)4 Addendum II. Pursuant to Article 9 of the Convention on the Protection of Animals Kept for Farming Purposes, recommendations made pursuant to it have legal status and are required to be implemented. The footnote to the Recommendation captures the position succinctly as follows: 'By virtue of Article 9 of the Convention, this Recommendation will become effective on 19 October 1991. As from this date each Party shall either implement it or inform the Standing Committee of the reasons why it cannot implement it. If two or more Parties have given notice of their decision not to implement it, the recommendation shall cease to have effect.'
31. In response to a report from Mr Kjarten Johanssen and Lord Kinnoull, Resolution 929(89) of the Parliamentary Assembly of the Council of Europe called on the members to adhere strictly to IWC decisions, to promote non-lethal methods of research and to extend IWC powers to deal also with small cetaceans.
32. Council Directive g2/43/EEC (OJ L 206 22/7/92).
33. Council Directive 83/129/EEC (OJ L 91 9/4/83 at 30) prohibits the import of skins and furs of certain pups of hooded seals.
34. In any event most welfare aspects of farm animals have internal market consequences.
35. To the extent that the Berne Convention falls within Article 228 of the Treaty of Rome it is binding on the Community and is an integral part of Community law. See Case 30/88 Greece a Commission [1989] ECR 3711.
36. See House of Lords Select Committee on the European Communities - Leghold Traps (supra n 16). Further, the Seals Directive is similarly founded upon an environmental basis and yet is well known that it was introduced in response to public revulsion at the annual whitecoat seal pup cull so well and graphically publicised. (See Reid, supra n 16.)
37. Commission Regulation (EC) 1771/94 postpones the date of the principal Regulation's import ban.
38. An intermediate revision of the Regulation implementing CITES was based on Article 100a and Article 113 whereas Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein (OJ L 61 3/3/97) refers only to Article 130s.
39. See Leghold Trap Regulation.
40. Article 235 Treaty of Rome gives power to take, in effect, ultra vires measures where power to fulfil the objectives of the Community and the Treaty are lacking. It has been used widely in the context of the Seals Directive, Council regulation (EEC) 348/81 (OJ L 39 12/12/81) on common rules for import of whales or other cetacean products, the previous regulation implementing CITES in the Community (Council Regulation (EEC) 3626/82 OJ L 384 31/12/82) and Council Directive 79/409/EEC OJ L 103 25/4/79) on the conservation of wild birds.
41. During the Irish Presidency paper CONF 2500/96 which contained a 'General Outline For A Draft Revision of the Treaties', in section 'E Animal Welfare' referred to using legally binding provisions to strengthen 'the Community's commitment to animal welfare'. A further paper, CONF 3887/96, comprised a memorandum from the UK submitted to the Inter-Governmental Conference which contained a draft protocol to the treaty dealing with animal welfare on the same basis as the declaration annexed to the Treaty on European Union. (See later). The animal welfare movement's joint position is set out in 'Pro Animal 96 - Putting Animal Welfare into the Treaty of Rome' (obtainable from Eurogroup for Animal Welfare, 13 rue Boduognat, B-1000 Bruxelles). The document is endorsed by the European Parliament's Intergroup for Animal Welfare in the following terms: 'The Intergroup on the Welfare and Conservation of Animals welcomes and supports the initiative of the European animal welfare movement in calling for an amendment to the Treaty of Rome which would recognize animals as sentient beings and thereby properly protect their welfare.'
42. It is noteworthy that a proposal put forward in 1991 for a Directive laying down minimum standards for animals kept in zoos failed to become law as a result, inter alia, of its lack of conformity with that comparably contentious doctrine, the subsidiarity principle. (See Wilkins, 'Animal Welfare in Europe - European Legislation and Concerns (supra n 24) at 105-6).
43. A Declaration of the Inter-Governmental Conference of the Member States of the European Community at Maastricht (see OJC 191 29/7/92 at 103). As a postscript after the time of writing; the European Community Member States (at the Amsterdam Summit meeting in June 1997) agreed to insert a protocol into the Treaty of Rome which states: 'In formulating and implementing the Community's agriculture, transport, internal market and research policies, the Community and the Member States shall pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.' Although this development represents a significant step forward for those seeking to advance animal welfare in the European Community, it is particularly noteworthy that the Protocol refers to 'policies' rather than to 'community legislation' and that it is not specifically directed at wild animal welfare.
44. The recent badgers legislation (consolidated by the Protection of Badgers Act 1992), which was generated by private members bill rather than direct government action, became law in this way, as an isolated welfare subject and provided the badger (Eurasian badger; Aides Meles) with a comprehensive package of protection which gives that animal at least as much protection from cruelty as endangered mammal species possess under UK law and certainly much more than is provided to common mammals with comparable capability to suffer such as the fox (red fox, Vulpes vulpes).
45. See Part 1, Wildlife and Countryside Act 1981.
46. Ibid, S.g, S.10 and S.11.
47. Article a of the Leghold Trap Regulation states that the 'use of leghold traps in the Community shall be prohibited by 1 January 1995 at the latest.'
48. Although the 'gin-trap', as it was known in the UK, was first regulated in the Damage by Rabbits Act 1939 which, inter alia, prohibited the setting of such traps in the open, the trap was finally banned in the UK through the effect of S.8 of, and subsidiary legislation made pursuant to, the Pests Act 1954. The cruelty of the trap was emphasised just prior to the 1954 Act in the Home Office/Scottish Home Department: 'Report of the Committee on Cruelty to Wild Animals 1951 (Cmnd 8266) 'Scott-Henderson Report'. See also, House of Lords Select Committee (supra n 16).
49. Sciurus carolinensis.
50. S.14 prohibits the release (and escape) of animals which are 'not ordinarily resident' in the UK and those listed in Part 1 of Schedule 9. Part 1 includes the grey squirrel and a number of other species, which have, inter alia, been artificially introduced into the wild. The UK Department of the Environment says, regarding Part I of Schedule 9 that 'in practice, most of the animals listed are those known to be established in the wild in Great Britain and causing damage to the environment.' Department of the Environment (1997) 'The Regulation and Control of Non-native Animals and Plants into the Wild in Great Britain'.
51. The position concerning the fate of the red squirrel (Sciurus vulgaris) is not, of course, so straightforward: see Gurnell, 'The Natural History of Squirrels' (1987), Facts on File Publications, pp 160-4. See also, Harris, BBC Widlife, May 1997, Vol 15 pp 12-17.
52. The position concerning the fate of the red squirrel (Sciurus vulgaris) is not, of course, so straightforward: see Gurnell, 'The Natural History of Squirrels' (1987), Facts on File Publications, pp 160-4. See also, Harris, BBC Widlife, May 1997, Vol 15 pp 12-17.
53. See, Department of Environment's view on licences, supra n 48 at 6-9.
54. See Harrop, 'The Modern Battle on the Riverbank-Fisheries Predation and the Law' Water Law, 1997, 8/ 1 at 28 for an analysis and suggested interpretation of the meaning and effect of S14(1) Wildlife and Countryside Act 1981.
55. Hall v Royal Society for the Prevention of Cruelty to Animals [1993] QBD (unreported CO 2876/92).
56. Under UK law many offences may be the subject of private prosecution, in particular Royal Society for the Prevention of Cruelty to Animals v Woodhouse [1984] dealt with this very issue in the context of the RSPCA.
57. Rowley v Murphy [1964] 1 All ER 50 per Lord Parker, CJ at 54.
58. Steele a Rogers (1912) 106 LT 79. The case was cited in Rowley v Murphy and involved the Wild Animals in Captivity Protection Act 1900.
59. See generally, for the history and concepts of the animal welfare movement and for use of the word 'speciesism', Ryder, 'Victims of Science: The Use of Animals in Research', Centaur Press, 1983.
60. The original measure came into being soon after the Scott-Henderson Report recommended in 1951, that the snaring of deer should be prohibited and that close seasons for the killing of deer should be imposed. Supra n 46 para 419(43)-(46) and generally paras 186 to 241. The regulation of deer hunting is different in Scotland: see The Deer (Scotland) Act 1959 as amended by the Deer (Amendment) (Scotland) Acts 1967 and 1982. See, for a summary of deer protection legislation in the UK, Parkes and Thornley, 'Fair Game' The Law of Country Sports and the Protection of Wildlife', Pelham Books, 1994.
61. Although the cruel and long illegal practice of 'badger-baiting' is, however, still carried out across the UK according to the records of the RSPCA.
62. Thus, not only are non-captive wild animals not included in the ambit of the 1911 Act but there is also a specific exemption in Section 1(3) which protects hunts when they release captive animals for the purposes of hunting provided that they comply with certain rigorous provisions.
63. See, Phelps, Allen and Harrop, 'Report of a Review of Hunting With Hounds', HMSO, 1997, para 7(7)(1).
64. In the unreported case of Farquhar v Royal Society for the Prevention of Cruelty to Animals the decision to convict the accused (a joint master of the Beaufort Hunt) in relation to offences under 8.3 Protection of Badgers Act 1992 was quashed on appeal to the High Court. See Knight, 'Earthstopping and the Law' Horse and Hound, 26 January 1995, for a summary of the law on earthstopping written soon after the appeal verdict. In the most recent case, Lovatt v Royal Society for the Prevention of Cruelty to Animals (Swindon Crown Court, 1997) the Court found the charges proved and the case turned on the meaning of 'loose soil' within S.8(5)(b) Protection of Badgers Act 1992.
65. Scott-Henderson Committee (supra n 46). See also Report of a Review of Hunting With Hounds (supra n 60) chapters 10 and 11 for further alternative regulatory proposals.
66. See, Scott-Henderson Committee (supra n 46) paras 405 to 418. See also, Report of a Review of Hunting With Hounds (supra n 60) chapters 10 and 11 for further alternative regulatory proposals.
67. The three private members' bills consisted of the so called 'McNamara Bill' of 1992 which was defeated by the second reading vote, the 'McFall Bill' of 1995 which failed due to lack of parliamentary time and the most recent, the 'Meale Bill', became the Wild Mammals (Protection) Act 1996. (Since the time of writing, a further private member's bill to ban hunting has been announced. However, at the time of publication, the extent of the proposed ban has not been indicated.)
68. Radford, 'Protecting Wild Mammals', New Law Journal, 29 March 1996.
69. Note, however, that the British Fields Sports Society, the centre for the UK hunting lobby, indicated its support for the previous 'McFall Bill' after the hunting with hounds provisions were removed from its text.
70. In the period during the lobbying, prior to the Bill becoming law, the RSPCA's lobbying material referred to records of failed or unprosecuted offences including remarkable atrocities such as squirrels being nailed to trees and hedgehogs being used as footballs.
71. S.1 states as follows: 'If, save as permitted by this Act, any person mutilates, kicks, beats, nails or otherwise impales, stabs, burns, stones, crushes, drowns, drags or asphyxiates any wild mammal with intent to inflict unnecessary suffering he shall be guilty of an offence.'
72. See Bateson, 'The Behavioural and Physiological Effects of Culling Red Deer', report to the National Trust, 1997. In response to this report, the National Trust took the decision to ban hunting deer with hounds on its land. See Report of a Review of Hunting with Hounds (supra n 60) chapter 8 for an interim analysis of Professor Bateson's report and generally for a current analysis of this general controversy.
73. See generally, House of Commons Session 1995-96 Environment Committee Fourth Report, 'World Trade and the Environment', HMSO.
74. The terms of reference of the Committee on Trade and the Environment are contained in Decision on Trade and Environment, Results of the Uruguay Round of Multilateral Trade Negotiations.
75. See Report of a Review of Hunting with Hounds (supra n 60) chapter 8 for an analysis of the relationship between foxhunting and trapping in the UK.
76. Thus, some of the CITES downlisting proposals, particularly as they relate to the animals of protected areas and game parks of Africa, concern requests for limited quotas of hunted animals to be brought into trade. The theoretical argument is that hunting generates income which either creates incentives or, indeed , finance for the conservation of particular species. The incentive argument might be expressed as follows: A farmer may tolerate a predator such as a cheetah taking his cattle if he can charge a hunter to shoot the occasional specimen. However, if there is no market for such hunting then the farmer may surreptitiously eradicate the species from his land. Without significant enforcemnent funds the national laws would be unlikely to prevent, in practice, such a surreptitious eradication. (Kayera and Overton (eds), 'Tourist Hunting in Tanzania', occasional paper of the IUCN Species Survival Commission (1996) No 14.)
77. Supra n 13.