The international regulation of animal welfare and conservation issues through standards dealing with the trapping of wild mammals

Journal of Environmental Law

Volumn 12, Issue 3, 2000, Pages 333-359

  Harrop, Stuart R ^a  

^a UNIVERSITY OF KENT   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ANIMAL WELFARE; ENVIRONMENTAL ISSUE; ENVIRONMENTAL LEGISLATION; ETHICS; INTERNATIONAL LAW; INTERNATIONAL TRADE;

ANIMALIA; MAMMALIA;

EID: 0034578618     PISSN: 09528873     EISSN: None     Source Type: Journal    
DOI: 10.1093/jel/12.3.333     Document Type: Article

References (90)

1. Charnovitz, 'The Moral Exception in Trade Policy', (1998) Virginia Journal of International Law 38(4), 689-743.
2. See W.J. Jordan, 'Poisons, Snares and Traps' in L. Boyle, The RSPCA Book of British Mammals (London: Collins, 1981) where the interesting question of whether early man scavenged or hunted is analysed.
3. Ibid, Jordan.
4. Although to a minor extent this remains a source and in some geographical areas hunted animals may still constitute a key dietary factor.
5. See by example the methods prescribed in the European Community's legislation: Council Directive 93/ 119/EC. Subject to some exemptions, such as the procedures for religious slaughter, this Directive requires that all animals to be slaughtered in the Community should be first stunned by prescribed methods in order that they are unconscious at the time of killing.
6. Supra, Jordan, n 1.
7. See House of Lords Session 1995-96, 8th Report, Select Committee on the European Communities, Leghold Traps, HL Paper 73 (London: HMSO). In terms of the principal fur exporters the following statistics illustrate the position. In 1994 Canada exported furs worth $13.8 million to the EU states (Canada Statistics 1995); the USA exported furs worth $44.8 million (US Department of Commerce, Bureau of the Census 1995).
8. The reference to methods is important because the welfare incidents of a restraining trap depend not only on the mechanical attributes but also on the operating procedures which may include stipulations requiring periodical inspection times. The long-term retention of a mammal has the potential to inflict considerable suffering, even if it were cage-trapped rather than physically restrained, if the trap is not regularly inspected. The law in the United Kingdom makes it an offence, in some cases, to fail to make timely trap/snare inspections. See section 11, Wildlife and Countryside Act 1981; section 9, Protection of Animals (Scotland) Act 1912; and section 10, Protection of Animals Act 1911. See generally, Parkes and Thornley, Fair Game: The Law of Country Sports and the Protection of Wildlife (London: Peiham, 1994).
9. S.R. Harrop, 'The Dynamics of Wild Animal Welfare Law', (1997) JEL 9(2) 287-302.
10. Ibid.
11. Supra n 7 at 8.
12. J. Scott-Henderson (Chairman), Home Office and Scottish Home Department, Report of the Committee on Cruelty to Wild Animals, Cmnd 8266 (London: HMSO, 1951).
13. See Phelps, Allen and Harrop, Report of a Review of Hunting with Hounds (London: HMSO, 1997); also supra, Parkes and Thornley, n 8, for a summary of UK legal instruments dealing with wild animal welfare law.
14. Council Regulation (EEC) 3254/91 OJ EC 1991, L 308/1.
15. Supra n 9.
16. The Convention on the Conservation of European Wildlife and Natural Habitats 1979, ETS 104.
17. Council Directive on the Conservation of Natural Habitats 92/43/EEC (OJ L 206 22/7/92).
18. The resolution was contained in Doc 4.32 presented at the 4th Conference of the Parties of CITES, 1983, Gaborone, Botswana. It is recorded in CITES Doc 4.6 that 'whilst many participants sympathised with the content of the document, it was felt that the issue was not within the terms of reference of the Convention'. The Articles referred to in the extract of the Gambia's proposal are concerned with the manner in which the trapped animals are prepared and shipped and the avoidance of cruel treatment during that process. These provisions have been interpreted as not to refer to details of capture but merely the conditions of transportation. (See generally, W. Wijnstekers, The Evolution of CITES, 3rd edn (CITES Secretariat, 1992).)
19. See, by example: supra n 7; A. Nollkaemper, 'The Legality of Moral Crusades Disguised in Trade Laws: An Analysis of the EC "Ban" on Furs from Animals taken by Leghold Traps', (1996) JEL 8(2) 237-56; A. Nollkaemper (ed), Trapped by Furs? The Legality of the European Community's Fur Import Ban in EC and International Law (Rotterdam: Centre for International Law, 1997) ISBN 90 803 936 1 4; supra nn 7 and 9; and S.R. Harrop and D. Bowles, 'Wildlife Management: The Multilateral Trade Regime, Morals and the Welfare of Animals' (1998) Journal of International Wildlife Law and Policy 1(1) 64-94; International Standards Organisation, Statutes and Rules of Procedure, 13th edn (1994) ISBN 92 67 02014.
20. See, by example: supra n 7; A. Nollkaemper, 'The Legality of Moral Crusades Disguised in Trade Laws: An Analysis of the EC "Ban" on Furs from Animals taken by Leghold Traps', (1996) JEL 8(2) 237-56; A. Nollkaemper (ed), Trapped by Furs? The Legality of the European Community's Fur Import Ban in EC and International Law (Rotterdam: Centre for International Law, 1997) ISBN 90 803 936 1 4; supra nn 7 and 9; and S.R. Harrop and D. Bowles, 'Wildlife Management: The Multilateral Trade Regime, Morals and the Welfare of Animals' (1998) Journal of International Wildlife Law and Policy 1(1) 64-94; International Standards Organisation, Statutes and Rules of Procedure, 13th edn (1994) ISBN 92 67 02014.
21. See, by example: supra n 7; A. Nollkaemper, 'The Legality of Moral Crusades Disguised in Trade Laws: An Analysis of the EC "Ban" on Furs from Animals taken by Leghold Traps', (1996) JEL 8(2) 237-56; A. Nollkaemper (ed), Trapped by Furs? The Legality of the European Community's Fur Import Ban in EC and International Law (Rotterdam: Centre for International Law, 1997) ISBN 90 803 936 1 4; supra nn 7 and 9; and S.R. Harrop and D. Bowles, 'Wildlife Management: The Multilateral Trade Regime, Morals and the Welfare of Animals' (1998) Journal of International Wildlife Law and Policy 1(1) 64-94; International Standards Organisation, Statutes and Rules of Procedure, 13th edn (1994) ISBN 92 67 02014.
22. See, by example: supra n 7; A. Nollkaemper, 'The Legality of Moral Crusades Disguised in Trade Laws: An Analysis of the EC "Ban" on Furs from Animals taken by Leghold Traps', (1996) JEL 8(2) 237-56; A. Nollkaemper (ed), Trapped by Furs? The Legality of the European Community's Fur Import Ban in EC and International Law (Rotterdam: Centre for International Law, 1997) ISBN 90 803 936 1 4; supra nn 7 and 9; and S.R. Harrop and D. Bowles, 'Wildlife Management: The Multilateral Trade Regime, Morals and the Welfare of Animals' (1998) Journal of International Wildlife Law and Policy 1(1) 64-94; International Standards Organisation, Statutes and Rules of Procedure, 13th edn (1994) ISBN 92 67 02014.
23. Wilkins (ed), Animal Welfare in Europe: European Legislation and Concerns (Amsterdam: Kluwer, 1997).
24. Defined, in Article 1 as 'a device designed to restrain or capture an animal by means of jaws which close tightly upon one or more of the animal's limbs, thereby preventing withdrawal of the limb or limbs from the trap'.
25. Supra n 9, for an analysis of the Berne Convention and its possible relevance as an international agreement supporting the import embargo in the Leghold Trap Regulation through its prohibition of indiscriminate methods of killing.
26. Supra n 7; and Nollkaemper; Harrop and Bowles, n 19.
27. Supra, Harrop and Bowles, n 19, for an examination of the legality of a postponement of the ban.
28. Supra, Harrop and Bowles, n 19; also n 7.
29. Supra, Harrop and Bowles, n 19.
30. Much of the history and details of the ISO TC 191 process described here derives from the author's own involvement in the committee during the three years leading up to the meeting in London in 1996. At both the Denver (1995) and the London meetings of the Committee the author was a delegate (appointed by Eurogroup for Animal Welfare) and was elected, on both occasions to the role of Chairman of the Committee's drafting group. For further information concerning the work of ISO TC 191 contact, International Standards Organisation, Geneva, Switzerland.
31. The Russian Federation was unable to join in making such threats as it was not a member of the WTO. See generally, Harrop and Bowles, supra n 19.
32. Supra n 7.
33. See Marrakech Declaration, 15.4.94, The Results of the Uruguay Round of Multilateral Negotiations - The Legal Texts (Geneva: GATT Secretariat, 1992).
34. Ibid at 138 et seq.
35. L.B. Campbell, International Environmental Standards: Their Role in Mutual Recognition of Ecolabelling Schemes, Discussion Paper, UNEP (September 1994).
36. Supra, Harrop and Bowles, n 19.
37. Supra, Harrop and Bowles, n 19.
38. Report of the Panel, United States: Restrictions on Imports of Tuna DS21/R and DS/29/R.
39. The report of the appellant body of the WTO is in document WT/DS58/AB/R 12.10.98.
40. Section 609, Public Law 101-62, 16 USC §1537.
41. Supra n 30.
42. Report of the Committee on Trade and Environment, WT/CTE/1, 12.11.96, para 171; Section vii, Report of the General Council to the 1996 Ministerial Conference, WT/MIN(96)/2, 26.11.96; see para 168 shrimpturtle decision.
43. See preamble, Leghold Trap Regulation.
44. Supra, Harrop and Bowles, n 19 and specifically the Report of the Panel, United States: Restrictions on Imports of Tuna DS21/R, p 45, para 5.26.
45. Supra n 30.
46. Although it is worth noting that in some circles the words are, arbitrarily or otherwise linked with Phytosanitary measures. See reference to the Protocol Concerning Sanitary, Phytosanitary and Animal Welfare Measures in Relation to Trade concerning trade between the Czech Republic and EC Member States, OJ L 106, 6.4.98 p 1; OJ L 219, 13.07.98, p 26.
47. DS21/R.
48. Supra, Harrop and Bowles, n 19.
49. See, by example, the technical provisions concerning weapons and ammunition used for hunting deer in primary legislation in Schedule 2, Deer Act 1991, setting out the position for England and Wales.
50. The position in Scotland is dealt with in secondary legislation in the Deer (Firearms) (Scotland) Order 1985.
51. The Codes include a number of documents setting out recommended welfare requirements in respect of the husbandry of cattle, pigs, sheep, poultry etc.
52. M. Cooper, An Introduction to Animal Law (London: Academic, 1987).
53. International Standards Organisation Memento (1994) p 147.
54. ISO Proposal for a New Field of Activity.
55. See ISO/DIS 10990-5 Animal (Mammal) Traps - Part 5: Methods for Testing Restraining Traps; and ISO/DIS 10990-4 Animal (Mammal) Traps - Part 4: Methods for Testing Killing Trap Systems used on Land or Underwater.
56. For further information about the status of the draft standards dealing with trap testing methodologies contact the BSI, 389 Chiswick High Road, London W4 4AL, UK.
57. See the relevant documents governing the ISO standards process during the work of ISO TC191, in particular, International Standards Organisation: Statutes and Rules of Procedure, 13th edn (1994); Directive (Part I) Procedures for the Technical Work, 2nd edn (1992); Directive (Part 2) Methodology for the Development of International standards, 2nd edn (1992); and Directive (Part 3) Drafting and Presentation of International Standard, 2nd edn (1989).
58. See the relevant documents governing the ISO standards process during the work of ISO TC191, in particular, International Standards Organisation: Statutes and Rules of Procedure, 13th edn (1994); Directive (Part I) Procedures for the Technical Work, 2nd edn (1992); Directive (Part 2) Methodology for the Development of International standards, 2nd edn (1992); and Directive (Part 3) Drafting and Presentation of International Standard, 2nd edn (1989).
59. See the relevant documents governing the ISO standards process during the work of ISO TC191, in particular, International Standards Organisation: Statutes and Rules of Procedure, 13th edn (1994); Directive (Part I) Procedures for the Technical Work, 2nd edn (1992); Directive (Part 2) Methodology for the Development of International standards, 2nd edn (1992); and Directive (Part 3) Drafting and Presentation of International Standard, 2nd edn (1989).
60. See the relevant documents governing the ISO standards process during the work of ISO TC191, in particular, International Standards Organisation: Statutes and Rules of Procedure, 13th edn (1994); Directive (Part I) Procedures for the Technical Work, 2nd edn (1992); Directive (Part 2) Methodology for the Development of International standards, 2nd edn (1992); and Directive (Part 3) Drafting and Presentation of International Standard, 2nd edn (1989).
61. These categories are examined in more detail in the remainder of this article.
62. Information in this part of the analysis is gleaned from the various drafts of the subcategories of standards which has roughly been classified into General (provisions common to all subcategories), Killing Traps and Restraining Traps.
63. See the provisions already referred to in the Berne convention, at international level, and in the EC's Habitats Directive, at the European level. Further, although primarily concerned with the impact of trade on endangered species, CITES may also be relevant. Thus an indiscriminate, non-selective trap set for a common species, which shares its range with a species (of similar size and with sufficiently comparable behavioural patterns) listed in one of the CITES Appendices, could detrimentally affect the population of the threatened species and contribute to its pelts coming into trade. (An example of this might be the incidental trapping of the CITES-listed North American black footed ferret (Mustela nigripes) which shares its range with a number of commonly trapped mammals.)
64. The key in a killing trap was thought to be the achievement of irreversible unconsciousness and thus the definition of 'effective kill' in draft ISO/TC 191/N 96 was: 'A process in which an animal is rendered irreversible unconscious with inevitable subsidence into death within the time limits established for the categories of kill.'
65. Referring to loss of consciousness and the onset of insensibility, the same draft stated that this could be determined, conservatively, by the measurable loss of a brainstem reflex such as palpebral and/or corneal reflexes.
66. The draft standard noted that this approach was 'designed to give 90% confidence that traps which pass the test allow retention of the reflexes longer than the lower threshold less than 30% of the time and longer than the upper threshold less than 20% of the time'.
67. Supra n 4 and associated text.
68. See by example ISO/TC/191 N 98.
69. See by example ISO/TC/191 N 97.
70. This scale does not include all the pathological observations in the draft standard ISO/TC/191 N 97 but seeks only to provide an overview.
71. Ibid, see Annex A, Description and Relevance of the Pathological Observations to the Clinical Welfare of the Animal.
72. Ibid, note to Table 2, Maximum Allowable Number of Observations Exceeding the Threshold Values.
73. Ibid, note to Table 2, Maximum Allowable Number of Observations Exceeding the Threshold Values.
74. Ibid, Annex C, Physiological and Behavioural Measurements on Animals in Restraining Traps; also Annex D, Stress Threshold (pending further research).
75. Ibid, Annex C, Physiological and Behavioural Measurements on Animals in Restraining Traps; also Annex D, Stress Threshold (pending further research).
76. Ibid, Annex C, Physiological and Behavioural Measurements on Animals in Restraining Traps; also Annex D, Stress Threshold (pending further research).
77. Ibid, Annex C.
78. See, by example, the work done on stress in hunted red deer (Cervus elaphas) summarised in P. Bateson and E.L. Bradshaw, Physiological Effects of Hunting Red Deer (Cervus elaphas), Proceedings of the Royal Society, B (1997) 264, 1-8.
79. See Commission Regulation (EC) 1771/94 laying down provisions on the introduction into the Community of pelts and manufactured goods of certain wild animal species. See also supra n 7.
80. Supra n 7.
81. Supra n 7 at 8.
82. Supra n 7 at 58.
83. The first is the Agreement on International Humane Trapping Standards between the European Community, Canada and the Russian Federation OJ L 042, 14.2.98 pp 0043-0057. It was approved in the European Community by Council Decision 98/142/EC (OJ L 042, 14.2.98 pp 40-1). The second is the International Agreement in the form of an Agreed Minute between the European Community and the United States of America on Humane Trapping Standards (Standards for the Humane Trapping of Specified Terrestrial and Semi-Aquatic Mammals) OJ L 219, 7.8.98 p 0026-0037.
84. Council Decision 98/487/EC concerning the conclusion of an International Agreement in the form of an Agreed Minute between the European Community and the United States of America on Humane Trapping Standards (OJ L 219, 13.7.98 p 24-5) which approves that agreement, refers back to the Council's decision of 22 July 1997 which approved the principal agreement and notes that it called 'upon the Commission to intensify its efforts to reach an Agreement with the [USA] that is equivalent to the Agreement with Canada and the Russian Federation'.
85. See paragraphs 4.2, Implementation Schedule, in each case.
86. There are no comprehensive methods prescribed to quantify the level of selectivity or capture-efficiency of traps within the standards.
87. Paragraph 2.3.2 lists them as fracture, joint luxation proximal to the carpus or tarsus, severance of a tendon or ligament, major periosteal abrasion, severe external haemorrhage or haemorrhage into an internal cavity, major skeletal muscle degeneration, limb ischemia, fracture of a permanent tooth exposing pulp cavity, ocular damage including corneal laceration, spinal cord injury, severe internal organ damage, myocardial degen-eration, amputation, and death.
88. See the European Brief on the principal Agreement issued by the Public Affairs Department of the Royal Society for the Prevention of Cruelty to Animals (RSPCA, Causeway, Horsham, West Sussex RH12 1HG, UK).
89. Ibid, RSPCA brief. The standards in the Agreement on International Humane Trapping Standards were weaker than those proposed by the EC scientists; for instance the standard accepted as humane for time to death in killing traps was five minutes for certain species, ten time longer than the 30 seconds proposed by the EC scientists. See Report by the European Parliament (OJ L14 19.1.98) on the trilateral Agreement.
90. Ibid.