Introduction: Protecting Animals in an Age of Globalization

In this introduction to Protecting Animals Within and Across Borders, readers are introduced to the topic of extraterritorial animal law and given a roadmap for the book. The chapter explains how animals are bred in one country, slaughtered in another, processed in another, then exported, and that highly mobile multinational corporations systematically exploit weaker animal laws to decrease production costs. Evidence is offered to show that states, policymakers, lawyers, and the public all seek to determine whether and how animals can be protected across borders. The chapter describes the arc of subsequent chapters and their interrelation, making the case that these complex problems can only be solved if they are analyzed from multiple perspectives, including trade, public international, and animal law. The final section outlines the author’s methodology to solve the problems the text raises.

Shifting Spatial Dimensions of Animal Law

Chapter 2 lays the groundwork for protecting animals in international law by presenting a series of arguments that justify applying domestic animal law across borders. It first describes the most pressing challenges raised by the globalization of animal production and asks if concluding a treaty is the most rational approach to solving them. It provides evidence for the assumption that treaty-making is both unlikely and undesirable, and that extraterritorial jurisdiction offers considerable comparative benefits by creating a dense jurisdictional net of overlapping laws. Chapter 2 then demonstrates in detail that animal law is highly entangled in economic terms (which serves as a justification for extraterritorial jurisdiction in economic law) and subject to a common consensus about the proper treatment of animals (which serves as a justification for extraterritorial jurisdiction in criminal law). Together, these arguments prove that states have a shared interest in protecting animals more effectively across the border.

Conclusion

The final chapter takes a broad and comprehensive perspective, returning to the structural challenges of animal law in an era of globalization and the question of whether extraterritorial jurisdiction can help tackle them. The author identifies the social and societal risks (as opposed to legal risks) that pose a real challenge to the law of jurisdiction and explains why we should not blindly advocate the blanket application of extraterritorial jurisdiction. But these dangers do not release us from the responsibility to protect animals in cross-border relations, as this would subject them to economic laissez-faire. The author uses insights from animal studies and postcolonial studies to describe the steps that must be taken to reconcile these conflicting demands. With these safety valves, the author concludes, extraterritorial animal law has the potential to evolve beyond adversity to multiculturalism, into a tool that facilitates cross-cultural sensibility, awareness of shared histories, and the elimination of oppression.

The Unanswered: Indirect Protection through the GATT

This chapter explores the breadth and scope of options available to states that want to indirectly protect animals across the border, in particular under the law of the World Trade Organization (WTO). The flurry of academic discussion at the intersection of animal and trade law was sparked by the Appellate Body’s Seals report in 2014, but it failed to cut deep enough to link to the doctrine of jurisdiction under general international law, and efforts to enter negotiations to more thoroughly protect animals in trade never materialized. The author advances the discussion and fills a gap in scholarship by examining whether and how states can use trade law to indirectly protect animals abroad through import prohibitions, taxes and tariffs, as well as labels. An analysis of the legality of trade-restrictive measures that indirectly protect animals under the General Agreement on Tariffs and Trade (GATT) precedes a discussion of justifications for violating the agreement.

Extended Jurisdiction through Foreign Policy, Soft Law, and Self-Regulation

This chapter focuses on whether states can use extended forms of extraterritorial jurisdiction to protect animals abroad, including foreign policy rules, investment agreements, jurisdiction assigned to international bodies, and self-regulation by private actors. These subtler forms of extraterritorial regulation are fully established and widely used in human rights law. When applied to animal law, they yield substantial benefits for states that want to protect animals abroad by reaching beyond traditional command-and-control structures and tapping the expertise of non-state actors. The focus of this chapter is on investment rules, export credit standards, bilateral investment treaties, bilateral free trade agreements, impact assessments, reporting, corporate social responsibility, codes of conduct, and the Guidelines on Multinational Enterprises, issued by the Organization for Economic Co-operation and Development (OECD).

Lex Ferenda: Direct Extraterritoriality

This chapter takes a critical positivist approach to exploring lex ferenda options to protect animals abroad, uncovering new applications of the passive personality principle, the universality principle, and the effects principle. Because the law of jurisdiction developed over centuries without considering animals, it does not meet the specific demands of animal law, conceptually and morally. The author offers a new application of the passive personality principle, arguing that animals should have functional nationality, like ships and corporations, that establishes a jurisdictional link to their home state. On this basis, a state can broadly and unequivocally protect its national animals abroad. The chapter next shows how the universality principle can, in the future, prohibit the most egregious crimes against animals that now escape every state’s jurisdiction (like illegal wildlife trafficking). Finally, arguments for a noneconomic version of the effects principle in animal law are explored.

The Ignored: Indirect Protection through the TBT, the SPS, the ADA, the AoA, and the Special Treatment Clause

Chapter 4 complements Chapter 3 by examining the means available for states to indirectly protect animals abroad under trade agreements dealing with technical barriers, sanitary measures, dumping, agriculture, and special treatment for majority world countries. It opens with a discussion of the indirect extraterritorial reach of labels and import restrictions under the Agreement on Technical Barriers to Trade (TBT) and then determines if the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) leaves room for protecting animals through indirect extraterritorial means. This chapter also explores the most appropriate way for members to react to dumping in animal law under the Anti-Dumping Agreement (ADA). Finally, it examines how states can use the Agreement on Agriculture (AoA) and the Special Treatment Clause to indirectly improve the lives of animals abroad through special schemes for subsidies or preferential treatment.

Legality of Extraterritorial Jurisdiction under International Law

Chapter 10 examines the legal risks of protecting animals abroad by offering a full analysis into the legality of extraterritorial jurisdiction under international law, and is intended to guide states that wish to use it. The reader is introduced to the types of jurisdictional conflicts that can emerge in animal law and shown how states can unilaterally prevent, manage, or mitigate them (such as through the principle of reasonableness, the rule of law, and the prohibition of double jeopardy). The chapter describes avenues for conflict resolution, including resorting to the principle of comity, or entering bilateral and multilateral treaty negotiations. It then elucidates the circumstances under which exercise of jurisdiction violates international law, in particular, the principles of sovereign equality, nonintervention, territorial integrity, and self-determination of peoples. The chapter concludes with an examination of the consequences a breach entails under international law, which is as useful for animal law as much as for other fields of law grappling with extraterritoriality.

Comparative Vantage Points of Extraterritorial Animal Law

Chapter 9 provides legislators with a full description of the comparative advantages of applying animal law across the border. It first clarifies the scope of extraterritorial jurisdiction by examining what kinds of administrative, criminal, and civil animal laws can be used extraterritorially. Using a functional comparative approach, the author describes the benefits of extraterritorial applying animal law extraterritorially, including constitutionally enshrined state objectives, rights and prohibitions, and duties of compassion. Criminal animal law (including advanced rules on corporate liability) and administrative animal law (including advanced standards on keeping, transporting, and slaughter) can also create significant advantages for animals when used to protect them across borders. The author describes these in detail and concludes that there are good reasons to believe that only a few of the existing animal laws can operate as exemplary models. For animal law to yield substantial benefits in extraterritorial application, it first must emancipate itself from the dominant animal use paradigm.

Mapping the Territory of Animal Law

Chapter 1 cuts through the tangle of scholarly arguments that obscure the law of jurisdiction, and offers a robust conceptual framework in which jurisdiction and extraterritoriality can be situated. It first describes the historical and conceptual factors that have redistributed jurisdictional space and corrects the most common misapprehensions voiced about jurisdiction by legislators and scholars. To elucidate the terms and concepts behind territoriality and extraterritoriality, the author develops a comprehensive extraterritoriality framework that categorizes jurisdictional norms by their anchor point, their regulated content, and their ancillary effects. The framework, which draws on established principles of the law of jurisdiction, can be used to determine whether a matter is territorial, indirect extraterritorial, or direct extraterritorial. The author introduces four case groups to illustrate the challenges animal law poses to the modi operandi of the law of jurisdiction and uses them to demonstrate the feasibility of the framework.