International law has long recognized the ecological and cultural significance of animals as part of the natural environment. The United Nations has expressed that animals living in the wild “have an intrinsic value and contribute to the ecological, genetic, social, economic, scientific, educational, cultural, recreational, and aesthetic aspects of human well-being and to sustainable development.” Thus, harm to animals must be addressed in any crime addressing harm to the environment.
We are currently experiencing what scientists call the sixth mass extinction, having already lost countless species, with many more on the brink. Regarded as one of the most serious environmental issues due to the ecological impacts of species loss, mass extinction poses an existential threat not only to individual species but also to all life on this planet. Extractive industries like mineral mining, oil drilling, and large-scale monocropping (growing a single crop year after year on the same land) of cash crops like soy and palm oil contribute to pollution, and deforestation decimates countless animal populations globally each year.
For example, mining pollution and oil spills have contributed significantly to water pollution and deforestation of the Amazon. Following a series of oil spills, over 10,000 endangered Titicaca water frogs suddenly died in Peru in 2016. The rise of palm oil farming is a major driver of deforestation and degradation of natural habitats in parts of tropical Asia and Central and South America and contribute to the deaths of 750 to 1,250 critically endangered Bornean orangutans annually.
While wild animals are more traditionally thought of as part of the environment, the billions of animals raised and exploited for food are similarly implicated in large-scale environmental issues. Emissions from large-scale animal agriculture form one of the main drivers of climate change. The Food and Agriculture Organization of the United Nations estimates that animal agriculture is responsible for 14.5 to 16.5 percent of global greenhouse gas emissions and causes significant environmental degradation, from biodiversity loss to deforestation. Brazil is the world’s largest beef exporter and home to a large portion of the Amazon rainforest, one of the most significant terrestrial carbon sinks. Extensive cattle ranching is the leading cause of deforestation in almost every Amazon country, and it accounts for eighty percent of current deforestation, releasing 340 million tons of carbon into the atmosphere every year. Nevertheless, ranchers in Brazil illegally use bulldozers, machetes, and fire to make room for pastureland.
There are serious animal welfare issues implicated in this massive industry, including those inflicted by husbandry practices. While these practices vary and are regulated differently country by country, there are many commonalities, some dating back thousands of years. Overbreeding and dwindling genetic diversity limit the ability of farm animals to adapt to environmental changes such as climate change. Due to the influence of Western dietary habits and subsidies or loans for animal agriculture, there has been a rise in factory farming in developing nations, mainly India, China, Brazil, and Ethiopia, but also Argentina, Mexico, Pakistan, Taiwan, Thailand, and the Philippines. Further, imported meat from factory farmed animals in countries with less stringent welfare regulations may be sold more cheaply than domestic meat, exacerbating welfare issues by putting pressure on farmers to engage in more harmful practices in order to cut costs.
Industrial fishing also contributes significantly to biodiversity loss and climate change. The ocean absorbs about a quarter of global carbon dioxide emissions each year. Every year, between 0.97 to 2.7 trillion fish are caught from the wild and killed globally, and countless more are farmed for food or caught for recreational purposes. The 2018 State of World Fisheries and Aquaculture report, published by the Food and Agriculture Organization of the United Nations, confirms a global trend toward unsustainable fishing, noting that thirty-three percent of global fish stocks are now overfished, a figure that continues to increase. Overfishing reduces the ability of fish to withstand and recover from other threats, including those from climate change—such as ocean warming, acidification, and reduced oxygen levels—affecting the health and survival of fish.
Pollution and deforestation from these practices inhibit the ability of citizens of affected areas to provide for themselves using their own natural resources and particularly impacts cultures that enjoy a close relationship with the natural environment, including many indigenous communities. Criminalizing the most egregious instances of these harmful practices would save countless lives. Not only do they contribute to or exacerbate the effects of climate change, which poses an existential threat to all life on earth, these practices inflict harm on countless individuals, human and animal alike.
A legal definition marks the first step towards making ecocide an international crime. For this to be accomplished, one or more ICC member states must propose an ecocide amendment to the Rome Statute before a meeting of the states parties to the Rome Statute. A majority vote at that meeting enables the amendment to enter into consideration. A Crime Review Conference may then be convened, or negotiation may progress via formal and informal discussion between representatives of states parties. Then, an agreement of two-thirds of the member states would be required to adopt the amendment into the Statute. Finally, countries must work to ratify and enforce the law within their respective domestic legislation. If this were to be accomplished, industries that have inflicted significant harm on humans and animals through environmental destruction and the governments that facilitate these harms may finally be held accountable.
II. United Kingdom 2021
In the aftermath of Brexit, there was great concern about the future of animal welfare legislation in the United Kingdom. In 2021 however, there has been a wealth of proposals for new animal welfare legislation, not least of which is the Animal Welfare (Sentencing) Act 2021, which increased sentences to five years, and the Animal Welfare (Sentience) Bill, which does the following:
1. Recognizes animals as sentient;
2. Introduces an Animal Sentience Committee; and
3. Gives that Committee the power to produce reports regarding government policy that assess whether the government is having due regard to the ways in which animals might be adversely affected. These reports may also contain recommendations for future policy implementation.
groundbreaking that a public body will now have the sole purpose of representing animal interests in government policy. But this bill is couched in language of discretion, with no firm commitments from any party involved.
A. Imports and exports
Other big developments in the wake of Brexit are the proposals regarding import and export bans. The premise of the European Union is that it creates a single market, which includes the free movement of goods between member states under Article 28 of the Treaty on the Functioning of the European Union (EU). Article 28 means that no import or export bans are possible, except in limited circumstances. Since the United Kingdom’s (UK) withdrawal from the EU, some significant import and export bans are being considered; these include the ban on importing fur and foie gras, the ban on importing puppies, and the ban on exporting live farm animals. The farming of animals for fur was banned in England and Wales in 2000 and Scotland and Northern Ireland in 2002. In May 2021, the UK government launched a radical consultation to consider what options were available regarding the import and sale of fur in the UK.
The production of foie gras, which involves the painful force feeding of geese, has been banned in the UK since 2000 under the Welfare of Farmed Animals Regulations and now the 2007 regulations, which, under Schedule 1, state the following:
22. Animals must be fed a wholesome diet which is appropriate to their age and species and which is fed to them in sufficient quantity to maintain them in good health, to satisfy their nutritional needs and to promote a positive state of well-being.
23. Animals must not be provided with food or liquid that contains any substance that may cause them unnecessary suffering or injury and must be provided with food and liquid in a manner that does not cause them unnecessary suffering or injury.
The UK government is now considering further restrictions on the import of the product.
Puppy farming has been banned in England since 2020 and in Wales and Scotland since 2021. The ban was accomplished by laws that require puppies under eight weeks to be sold with their biological mother. These bans, however, do not extend to puppies being imported into the UK. As a solution, a ban on the import of puppies has been proposed and is close to becoming a reality: the new Animal Welfare (Kept Animals) Bill, introduced to Parliament in June 2021, will give the UK government the power to implement a minimum age on dogs being imported into the UK.
Live exports of farm animals are controversial all over the world, and the EU is no exception. The EU is the biggest live exporter in the world. Live exports are rife with welfare issues. Farm animals being transported throughout the EU benefit from rules on welfare conditions during transit that, among other things, require rest periods, proper handling, and timely feeding. This is true even for the animals that leave the EU, as their treatment and fate do not fall outside of the EU’s jurisdiction. In addition, meat imported into the EU must have been slaughtered in accordance with EU standards; however, no such requirement exists for exported animals.
As a result of all these issues, live exports have been controversial in the UK for many years; however, the single market has meant that export restrictions could not be put in place. The Animal Welfare (Kept Animals) Bill bans the export of bulls, cows, heifers, calves, buffalo, bison, horses, ponies, donkeys, asses, hinnies, mules, zebras, sheep, goats, pigs, or wild boar for slaughter or fattening for slaughter.
Action Plan for Animal Welfare
Many of the proposals that are now possible since the UK’s withdrawal from the EU have been published in its 2021 Government Action Plan for Animal Welfare, which outlines UK policy on animal welfare. Along with focusing on sentience, bans on the importation of fur, foie gras, puppies, and bans on live exports, the plan includes the following:
1. A ban on advertising unethical tourist experiences involving animals overseas, such as elephant rides;
2. A ban on the import of shark fins;
3. A ban on the import of hunting trophies;
4. A ban on cages for laying hens;
5. A ban on farrowing crates for pigs;
6. Cracking down on pet theft; and
7. Prohibiting the keeping of primates as pets.
But many of these proposals have not yet been published as legislative bills. It is therefore unknown what form they will take or how effective they will be.
C. Trade Deals
One of the biggest concerns with leaving the EU was that the UK would be desperate to enter trade agreements with the rest of the world with diminished bargaining power. Specifically, there was a fear that this would come at the cost of animal welfare. These fears of adverse trade agreements for animal welfare seem to be becoming a reality, as evidenced by the June 2021 agreement with Australia, under which Australian beef, sheep, and dairy farmers are able to access the UK market tariff-free, effectively creating a huge incentive for Australian farmers to sell more of their products in the UK. This is a huge blow not only to UK farmers but also to animal welfare. Australia is known for having very poor welfare laws for farm animals, which allows practices that are banned in the UK, “such as sow stalls, battery cages, high usage of hormones and antibiotics during rearing, and slaughter with no prior stunning.”
D. Conclusion
it comes to animal welfare, Brexit really is a mixed bag. All that can be done is to work to ensure the progress happens without any dilution in current animal welfare standards.
III. Brazilian Supreme Court Upholds Constitutionality of Rio de Janeiro’s Ban on Animal Testing of Cosmetics
Today, alternatives to animal testing are numerous and accessible. Consumers are more informed, and knowledge is available to government decision-makers. While there are still countries where animal testing of cosmetics is allowed, or even mandatory, more and more governments are enacting bans. A recent judicial decision in Brazil considered the constitutionality of one such ban.
In May 2021, in a lawsuit filed by a cosmetics industry trade group, the Brazilian Supreme Court upheld the State of Rio de Janeiro’s ban on animal testing of cosmetics, perfumes, and personal care and cleaning products within its territory. The Court held, however, that the state could not prohibit the sale, within Rio de Janeiro, of cosmetic products that had been tested on animals elsewhere and could not require the labeling of a product’s animal testing status. While Brazil’s Constitution does expressly require the government to protect animals from cruel practices, the Supreme Court’s decision instead was mainly based on the ability of Brazilian states to legislate in the area of environmental protection, with the protection of animals viewed as a part of that activity. Nine other Brazilian states and the federal government have enacted similar legislation, and the Brazilian Supreme Court had previously recognized the constitutionality of the State of Amazonas’s law prohibiting animal testing of cosmetics.
The participation of Humane Society International (HSI) as an amicus curiae led the Court in its deliberations and written opinions to consider animal welfare and the ethics of cosmetic animal testing. Justice Alexandre de Moraes placed Rio’s ban in the larger context of the worldwide movement to end cosmetic testing, directly quoting HSI’s amicus brief:
Europe has over a decade of experience in banning animal testing for the development of cosmetics. Scientifically, the advantages outweigh the disadvantages. . . . This list of advantages, associated with intelligent and well-formulated development policies, has produced great scientific advances in the development of alternative methods with applications in cosmetics, pharmaceuticals, cleaning products, and agrochemicals.
Justice Luís Roberto Barroso, who previously decided in favor of animal protection in a number of cases, argued that the intrinsic value of animals should be recognized, regardless of their role in protecting the environment. He observed: “Perhaps it is the fourth narcissistic wound of the human condition. We are no longer the center of the universe since Copernicus.”
Justice Nunes Marques, a recent appointment by the Jair Bolsonaro administration, from whom more conservative positions are expected, was the only judge who voted for the entire law to be declared unconstitutional. But his acknowledgment of the government’s right to protect animals to prevent the spread of zoonotic disease was notable:
The protection of animals from scientific experiments or abusive industries is extremely relevant, this is not under discussion . . . It is worth remembering that any manipulation of animals in laboratories represents a risk of spreading new diseases among human beings. In the midst of a pandemic, we must keep this very present and clear.
Several judges voted for the constitutionality of all parts of the ban, including Justice Rosa Weber, who mentioned that it was constitutional for a Brazilian state to require animal testing labeling because a state can issue regulations on “production and consumption, in particular the right to adequate information.” Justice Cármen Lúcia’s opinion explored the ethical importance of animal protection:
What the Constitution establishes, precisely in item VII of art. 225, is exactly the requirement that, for all intents and purposes, fauna and flora must be protected, and practices that lead to extinction or subject animals to cruelty are prohibited . . . which I consider to be a very important civilizing aspect. I always think that when someone hurts another person or animal, there is an aspect of cruelty in hurting oneself and in hurting the other. I think that what the Constitution and human dignity establish, for us and for those who come after us, is an advance of humanity . . . .
In sum, one judge would have struck the law in its entirety, five would have upheld the whole law, and five found only the territorial ban on testing to be constitutional. Thus, ten of the eleven judges upheld the territorial ban and, had there been one more vote in favor, the sales ban and labeling requirements would also have been upheld. The closeness of the decision shows that the Brazilian Supreme Court is narrowly divided and suggests the potential for future activity in this area.
IV. Cuba Passes the Nation’s First Animal Welfare Law
Formerly one of the few Latin American countries without a national animal protection law, Cuba took historic steps to recognize animals’ moral status with the passage of Decree-Law 31 on Animal Welfare in 2021. Calls to enshrine animal protections into law had reached a fever pitch two years before, when demonstrators called for change in the streets of Havana in 2019. Building on this momentum, animal advocates proposed a welfare bill to the government, which promised to review and approve the law in November 2020. The Cuban Government, however, failed to pass the decree-law as anticipated and postponed its vote until February of 2021. Seizing the chance to witness historic change for animals, advocates demonstrated before the Ministry of Agriculture on February 19, 2021. One week later, Cuba’s Council of State announced the passage of Decree-Law 31, the provisions of which were published in the Official Gazette on April 10, 2021, and went into force ninety days later.
Cuba’s recognition of human-animal interdependence informs the need for the law. Indeed, the decree’s preamble cites Article 90 of Cuba’s Constitution, which imposes a duty on citizens to promote the health of the environment and protect fauna and flora—albeit partly in the context of resource conservation. It also cites the need to acculturate respect for animals and foster harmony between humans and other species to ensure our continued existence. In this vein, it is fitting that the law’s first article regulates “the principles, duties, rules and purposes regarding the care, health and use of animals, to guarantee their well-being, with a focus on One Health[,]” a paradigm that recognizes how human health is inextricably intertwined with animal health and the environment.
Although not all-encompassing, the Decree-Law is considerably wide in scope. Animals contemplated by the law includes: “any mammal, bird, bee, reptile, fish, mollusk, crustacean, and amphibian . . .” It also considers animal welfare in terms of both physical and mental wellbeing, a tacit recognition of animal sentience. The principles that inform the law’s protections are both wide-ranging and robust: animals must be allowed to live and develop in ways that allow for their species-specific subsistence; they must be cared for, protected, and have their basic needs met; they cannot be abused, abandoned, or degraded; companion animals must be respected for the duration of their lives; labor animals are to be afforded adequate food and rest and not overburdened; and, if they are to be killed, their deaths must be carried out instantly and without pain.
In terms of general requirements, the Decree-Law requires both humans and corporations to meet animals’ species-specific needs. For example, those who own or possess animals are required to do the following: provide adequate food and water and a comfortable environment; ensure the animals do not suffer or feel pain, including fear, stress, and anguish; and see that the animals are allowed to express natural, species-specific behaviors. As a testament to its One Health focus, the law requires breeders to adhere to sanitary and hygienic guidelines to ensure their animals’ wellbeing and prevent the spread of zoonoses. Additionally, Decree-Law 31 features an umbrella ban on animal fighting, although exceptions exist. Indeed, the law is viewed as ill-equipped to combat cockfighting, which is seen as having traditional roots in Cuba. On the whole, the law’s enforcement falls upon Cuba’s Ministry of Agriculture, which works with other national, state, and local agencies.
In addition to these general rules, Decree-Law 31 also features context-specific regulations. For example, Chapter III imposes requirements on veterinarians to attend to sick and injured animals and to ensure that appropriate protocols and tools are used. Chapter IV focuses on duties owed to animals bred for food and other commercial purposes. Those who oversee such animals are prohibited from agitating, overcrowding, exposing animals to extreme temperatures, or depriving the animals of light. Notably, the law also prohibits killing animals based on their sex at birth unless authorized by the animal health authority. Chapter V concerns animals used for labor and, among other things, requires the following: animals are given adequate food, shelter, and veterinary care; animals are protected against heat-related stress, being permanently tied up, and physically or mentally abused; and animals must be moved to safety during natural disasters.
Chapter VI focuses on the care of pets and street animals. Of the former, the law formally recognizes them as animales de compañía, or companion animals, and requires that they be given shelter and sufficient space if left outdoors, be vaccinated and sterilized to bring down Cuba’s street animal population, and adopted if unwanted. Regarding street animals, the law authorizes them to be collected and held until they are returned to or claimed by their owners; adopted; transferred for care, rescue, or rehabilitation; or euthanized. Chapter VII concerns animals used for sport, exhibition, and entertainment purposes. This chapter prohibits subjecting animals to stress for extended periods of time and requires handlers to use only positive conditioning for training, protect animals from abuses by the public, and house animals in species-appropriate facilities.
Chapter VIII creates guidelines for animals used in experimentation. Here, the law stipulates that animal-based research can be undertaken only by government-authorized institutions and can only be done in a way that prohibits unnecessary suffering. Notably, the law creates institutional ethics committees to govern animal use and care. Chapter IX concerns the use of animals for instructional purposes and prohibits their use if alternative methods can be employed to meet an educational goal.
Chapter X covers the marketing of live animals, and Chapter XI creates regulations for animals in transport. Here, the law requires animals be transported using species-specific methods and, in the case of commercial or large-scale transport, bans the transport of sick or incapacitated animals, as well as those in late stages of pregnancy, among other restrictions. Notably, the chapter also creates welfare standards for aquatic animals in transport.
Finally, Chapter XII creates regulations for animal slaughter and features a general requirement that it be carried out using compassionate methods, such as stunning, to avoid pain and stress. That said, the law does not ban religious slaughter of animals, such as those practiced by Santeríans. It does, however, still require that animal sacrifice be “carried out rapidly and compassionately, to avoid pain and stress.”
Cuba’s historic law is, likewise, noteworthy for distinguishing between violations committed by individual people and those commited by corporations, with the former facing penalties between 500 to 1,500 Cuban pesos (CUP) and the latter between CUP 2,000 to 4,000. To be sure, the law constitutes a historic step for animals, especially in a single-party country where dissent is not countenanced. Indeed, the Decree-Law 31 represents a firm foundation for future advocates to build upon.
V. Don’t Call It a Comeback: Unstable Legal Regimes for Wolf Protection
A. Introduction
Wolves are considered a “critical keystone species” because they regulate prey and other species within an ecosystem. Just as climate change impacts human food resources, it also impacts food distribution in the ecosystem. Through a study conducted at Yellowstone National Park, researchers have been able to determine that wolves act as “climate change buffers” because of their relationship with ther species in the Yellowstone ecosystem. The researchers found that “scenarios demonstrate that wolves act to retard the effects of a changing climate on scavenger species.” Despite the significance of wolves in ecosystems, the species has continued to be portrayed as a villain that must be vanquished. In June 2021, a female red wolf was shot multiple times and killed by a private landowner in North Carolina, despite the protections extended to her under the Endangered Species Act. The red wolf, alongside the grey wolf in the west, has been deemed a conservation success story, after the species was annihilated down to fifteen or so members. This article examines the unstable legal regime that needs to be strengthened to protect the wolf.
B. Europe
In Europe, the gray wolf was rendered virtually extinct by the 1900s, and wolf killing was eventually banned by the 1970s. In 1992, the EU adopted the Habitats Directive, which is considered the “cornerstone” of Europe’s conservation policies. Similar to the Endangered Species Act in the United States, it lists species and plants within different annexes, and each of the annexes assigns a different level of protection needed to be enforced by the EU member states.
Throughout Europe, with wolf populations increasing, rural populations, particularly farmers, face the challenge of dealing with the return of the top carnivore. This is often classified as “human-wildlife conflict.” Germany has had success with programs promoting education and encouraging coexistence with wolves through assigned “wolf commissioners.” Spain has taken steps to introduce protections for the Iberian wolf, including a ban on hunting. This measure has not been well accepted by farmers who insist on having the ability to protect livestock from predators.
Norway, which is not part of the EU, introduced culling efforts to keep the wolf populations low, which has pitted the government, farmers, and environmentalists against each other. In 2017, the World Wildlife Fund (WWF) sued Norway, asking the court to place a temporary ban on hunting and culling efforts because the wolf was on Norway’s endangered species list. In 2018, the court ruled against the WWF, stating that the actions of Norway’s government did not violate any laws. Regardless of the outcome of this lawsuit, Norway is a party to the Bern Convention, Europe’s wildlife protection convention, which extends protections to wolves. It has been noted that “Norway’s past and current wolf policy are at odds with the country’s obligations under the Bern Convention.”
In 2020, the EU Court of Justice ruled in Alianța Pentru Combaterea Abuzurilor v. TM and Others that the strict protection afforded to wolves under the Habitats Directive extends not only to their natural habitats and but also to human settlements. The court stated that the Habitats Directive does not “comprise any limits or borders, with the result that a wild specimen of an animal species which strays close to or into human settlements, passing through such areas or feeding on resources produced by humans, cannot be regarded as an animal that has left its natural range.”
C. The United States
In the United States, the largest piece of legislation that protects wolves is the Endangered Species Act. Prior to the 2020 election, the U.S. Fish and Wildlife Service (FWS) removed protection for all gray wolves, except in Arizona and New Mexico. The delisting ends a once-successful species reintroduction for both the red wolf and the gray wolf. This has led to contentious discussions over wildlife management, including the impact that the delisting has on tribal cultures.
In Wisconsin, the success of the reintroduction of the wolf has led to political battles on wolf population management. During the February 2021 hunting season, 220 wolves were killed by hunters in three days. For the upcoming hunting season, farmers and environmentalists are arguing over whether the wolf population of 1,000 could sustain a 300-animal wolf hunt kill limit, despite advice from biologists suggesting that the cap be lowered to 130 because the hunting season, which overlaps for a few days with the wolf breeding season, could have unknown ramifications. Moreover, the Ojibwe tribes have expressed anger at the quotas, as they do not align with proper stewardship and are a violation of the tribes’ treaty rights. The Ojibwe have joined the lawsuit against FWS to restore protections for the wolf, discussed below.
In Idaho, lawsuits have been filed against the state for the new statutes that went into effect, which “call for the killing of up to 90 percent of the state’s gray wolf population through year-round hunting, trapping and snaring.” Environmental advocates claim that Idaho is “abrogating” its duties to maintain the health of the species. The same is also said of Montana, where forty percent of the wolf population has been approved to be hunted (450 wolves). Montana has also approved the use of controversial killing methods such as neck-snare trapping, bait hunting, and nighttime wolf hunting.
So far, the U.S. Department of the Interior has declined to comment on a request by tribal leaders to discuss the Wolf Treaty that was signed by several tribal nations because of the sacredness and cultural importance of the wolf to different tribal cultures. In line with both the Obama and Trump administrations, the Biden administration has now taken steps to keep the delisting, as noted in the Defenders of Wildlife v. U.S. Fish and Wildlife Service case, which is proceeding in the U.S. District Court of Northern California.
D. Conclusion
Similar frustrations for the wolf populations are prevalent in areas throughout Asia, which is home to three wolf species. Many of the problems facing the wolf in Asia, like the maned wolf in South America, are due to territorial loss due to development. The biggest international challenge facing the wolf is the myths that have been perpetuated about their behavior.
The wolf, like many of the large predators that are critical to ecosystems, including the tiger and the shark, deserves balanced protection and a stable legal regime that does not change depending on its population. In an age where finding solutions to climate change is needed, eliminating a keystone species will not bring humanity closer to protecting the environment.
