BOOKS: Legislative & regulatory options for animal welfare

From ANIMAL PEOPLE,  November/December 2011:

Legislative & regulatory options for animal welfare
by Jessica Vapnek & Megan Chapman
for the Development Law Service,  FAO Legal
Office.   FAO Legislative Study 104.
Free download from:  http://www.fao.org/docrep/013/i1907e/i1907e00.htm

“Because food animals are important to
human welfare–as a source of nutrition and
income–concern for animal welfare is
inextricable from concern for human needs,”  open
United Nations Food & Agricultural Organization
researchers Jessica Vapnek and Megan Chapman in
Legislative & regulatory options for animal
welfare.  “This is particularly the case in
countries with developing economies,”  Vapnek and
Chapman continue,   “where current and expected
population increases are putting pressure on food
security and economic growth.  Increased food
animal production,”  Vapnek and Chapman assert,
“is often a necessary part of attaining both
goalsŠThe key challenge is to find ways to
increase food animal production while
simultaneously improving or ensuring good animal
welfare and protecting food security.”

This preface could as easily have been
written by the animal agribusiness boosters at
Heifer International,  or any of dozens of other
livestock gift charities and development funding
agencies–or,  more recently,  by the authors of
appeals from the World Society for the Protection
of Animals.  The preface to Legislative &
regulatory options for animal welfare is,  in
gist,  a succinct summary of conventional
thinking about animal agriculture,  introducing a
resume of ideas about how to bring animal welfare
considerations along for the ride.

Conventional thinking is often not really
thinking at all,  as the presumptions recited by
Vapnek and Chapman illustrate.  Reality is that
the drought and desertification resulting from
global warming are already imposing limits on
animal agriculture in much of the developing
world.  These limits are violated at risk of
inviting the collapse of the ecosystems that feed
both humans and livestock.

An example occurred in Pakistan in 2010
when melting Himalayan glaciers and intense
monsoons produced catastrophic floods.
Deforestation and loss of topsoil associated with
overgrazing left the dry foothills above the
Indus River unable to absorb the fast-flowing
water,  which carried away much of what topsoil
remained.

A second example,  in the form of
drought,  struck Ethiopia,  Somalia,  and Kenya
in mid-2011.  The numbers of livestock in the
region,  reduced by past droughts,  had been
rebuilt to numbers beyond the longterm carrying
capacity of the available forage and water.

About 12 million people were and are at risk of
famine,  in a region with water and crop
potential sufficient to feed the human residents,
barely,  but insufficient to feed both the human
population and livestock,  if livestock are kept
at anywhere near the abundance of recent decades.

The authentic key challenge is to
persuade the world to recognize that increasing
livestock production “while simultaneously
improving or ensuring good animal welfare and
protecting food security” is an oxymoron–and
this is not just the perspective of animal
advocates.  Wang Qian,  editor of the Chinese
agricultural trade journal Livestock & Poultry,
argued at the June 2011 Asia for Animals
conference in Chengdu that concerns about food
security,  the environment,  and animal welfare
too could all best be served in China by reducing
pig production by a third,  making pork much more
expensive.

Laws follow technology

Despite starting from false albeit widely
accepted premises, Vapnek and Chapman offer a
useful review of how livestock welfare is
presently regulated,  to the limited extent that
it is.  As concern for the well-being of
livestock expands,  usually driven by recognition
of threats to human health if animals are raised
in unhealthy conditions,  “Some countries use or
adapt pre-existing legislation on the prevention
of cruelty to animals,” Vapnek and Chapman
summarize,  “while others draft new animal
welfare laws,  blending national and local
concerns with international animal welfare
principles.

“Because the earliest animal welfare
legislation was developed in countries where
industrialized production is the norm,”  Vapnek
and Chapman continue,  “these legislative
instruments tend to focus on farm animals housed,
transported and slaughtered in high-technology
environments designed to intensify production.”
Even the Twenty-Eight Hour Law of 1873
passed by the U.S. Congress at the dawn of the
U.S. humane movement fits into this category.
While livestock slaughter methods have been
regulated since the time of Moses,  in the
developed world the remnants of pre-industrial
livestock housing and  transportation methods
have usually come under the scope of animal
protection laws only after producers using
pre-industrial methods have lost most of their
market share.

“However,  animal welfare legislation
need not be limited to industrialized
production,”  Vapnek and Chapman argue.
“Well-drafted legislation can and should apply to
other types of production such as subsistence
farming and small-scale commercial production.
Different scales of production raise different
concerns,  but the basic animal welfare
principles are common to all.  What people
understand by animal welfare,” Vapnek and Chapman
continue, “depends in part on values that differ
between cultures and individuals.  These
differences lead people to emphasize different
elements of animal welfare that can be summarized
under three broad headings.  The first is an
emphasis on the physical health and biological
functioning of animalsŠDisease,  injury and
malnutrition are more or less universally
regarded as animal welfare problems.  The second
is concern about the ‘affective states’ of
animals,  especially negative states such as
pain,  distress and hunger.  These are common
concerns in many cultures,  but in some cases
they are de-emphasized by certain people–often
animal producers and veterinarians–who may,  for
example,  regard the short-term pain of
castration as not important enough to warrant
pain management.  The third is a belief that the
welfare of animals depends on their ability to
live in a reasonably ‘natural’ manner,  either by
being free to perform important elements of their
natural behavior or by having natural elements
(such as daylight and fresh air) in their
environment.  This last belief arises especially
in industrialized countries and is common in
critiques of industrialized forms of animal
production.  It generally has less currency in
cultures that have not undergone
industrialization of their economies or animal
production systems.

“In general,”  Vapnek and Chapman
believe,  “reducing disease,  injury,
malnutrition and death improve the efficiency of
animal production and help reduce production
costs.  In contrast,  measures to allow natural
behavior and natural environments generally
require that animals in confinement systems be
given more space and other amenities;  they may
also require animals to be kept partly outdoors,
potentially compromising control over pathogens
and harsh weather effects.”

Accordingly,  introducing measures to
reduce disease,  injury,  malnutrition,  and
death of livestock is often achieved without
legislation,  though laws may be introduced to
ensure compliance with best practice.
Introducing other animal welfare measures,  by
contrast,  typically encounters resistance rooted
in both perceived economic necessity and rural
tradition.

GATT,  WTO,  & animals

The FAO,  as an arm of the United
Nations,  is primarily concerned with
international regulation,  which has evolved
largely to regulate commerce.  In particular,
international regulation seeks to ensure that the
rules of commerce are not mani-pulated by
national laws to the unfair advantage of the
producers and sellers of particular nations.
This is the primary concern of the World Trade
Organization,  established under U.N. auspices,
and of the U.N.-brokered General Agreement on
Tariffs and Trade,  which is administered by the
WTO.

“Article XX of GATT lists trade-restricting measures that can be exempted
from WTO rules,” Vapnek and Chapman explain,
“including measures ‘necessary to protect public
morals’ and measures ‘necessary to protect human,
animal or plant health.’  Legal arguments have
been framed to justify an exemption for animal
welfare trade restrictions under both paragraphs,
although it is generally agreed that animal
welfare issues can more easily be justified as
protecting human or animal health than public
morals,”   since cruelty to animals is not yet
universally recognized as a moral issue.
Acknowledge Vapnek and Chapman,  “because
the WTO has not yet directly addressed the issue
[of animal welfare],  the arguments themselves
and the likelihood that they might succeed are
all speculation.”

Legislative & regulatory options for
animal welfare was published shortly before a WTO
panel on September 15,  2011 ruled that the
qualifications required for “dolphin-safe” tuna
certification,  enforced by the U.S. Commerce
Department,  “are more trade-restrictive than
necessary” to inform buyers as to whether
dolphins were harmed in tuna fishing.

The verdict,  however,  did not hold that
informing buyers about whether dolphins are
harmed by tuna fishing methods is in itself a
violation of the GATT rule against any WTO member
nation using “process standards” to exclude
imported merchandise.  “Process standards” are
standards governing how an item is produced,
rather than whether it meets considerations of
safety and quality.

The Canadian government contends in a
pending appeal to the WTO that the 2010 European
Union ban on imports of seal products violates
the GATT prohibition of “process standards,”
because the ban is based on the assessment of the
EU that the process of obtaining seal products is
unacceptably cruel.  The Canadian appeal may be
the most difficult test yet for international
animal welfare regulation.  The outcome may
influence whether the EU moves ahead with a ban
proposed in October 2010 on animal cloning for
food production.

“At the second special session of the WTO
Committee on Agriculture in June 2000,”  Vapnek
and Chapman recall,  “the European Union
submitted a proposal on animal welfare and trade
in agriculture, arguing that the WTO should
directly address animal welfare standards.  The
EU has more stringent animal welfare regulations,
and therefore higher production costs in certain
cases,  than some of its trading partners.  The
EU expressed concern that its animal welfare
standards could be undermined and that it could
suffer negative trade effects,  since
agricultural products produced to meet high EU
animal welfare standards would run the risk of
being edged out of the market by cheaper imports
produced under lower standards.  The EU agreed in
its proposal that animal welfare provisions must
not be used for protectionist purposes,  but
argued that greater international efforts are
needed to win recognition for EU animal welfare
standards and to ensure that they are not
undermined by WTO trade obligations.

“The EU proposal set out several
potential ways to address animal welfare
standards within the WTO,”  Vapnek and Chapman
continue.  “The first suggestion was the creation
of a new multilateral agreement on animal
welfare.  The second was to establish a labeling
regime pertaining to animal welfare standards for
imported foods,”  similar to the U.S. tuna
labeling that was the subject of the September
2011 WTO verdict,  “enabling consumers to make
informed choices.  Third,  the EU proposed a
compensation scheme to enable producers to meet
the additional costs of producing food to meet EU
animal welfare standards.  The proposal did not
receive widespread support among other WTO
members,” Vapnek and Chapman observe.  “A number
of countries,  including Bolivia,  India,
Pakistan,  Thailand and Uruguay,  indicated that
although they were not indifferent to animal
welfare,  the priority for their resources was
the alleviation of human poverty and suffering.
Argentina and India stressed that countries
should be left to set their own standards.

Colombia and again India rejected the labellng
proposal as simply a disguised barrier to trade.
The debate over these issues continues.”
Until the WTO definitively addresses
animal welfare, Vapnek and Chapman write,  “the
common consensus is that for the time being
animal welfare-based restrictions are not
permitted under the WTO trade regime.”

The European Union,  however,  has moved
toward adopting common standards for animal
welfare since 1992,  when a non-binding
Declaration on the Welfare of Animals was adopted
which asks member nations to “pay full regard to
the welfare of animals” when drafting and
implementing legislation.  In 1997 the EU added a
Protocol on Protection & Welfare of Animals that
recognizes animals as “sentient beings.”
This,  note Vapnek and Chapman,  is “a
status distinct from property or agricultural
products.”  The protocol introducted “legal
obligations to consider animal welfare in the
formulation and implementation of European
Community agriculture,  transport,  internal
market and research policies.”

Ritual slaughter

Vapnek and Chapman return to their
argument that “animal welfare legislation need
not be limited to industrialized production” by
comparing slaughter regulations in the U.S. to
those of Tanzania.  “In the U.S.,”  Vapnek and
Chapman declare,  “the abrogation of slaughter
requirements is complete and unconditional for
ritual or religious slaughter.”

This is not strictly accurate.  As
attorneys Gary Francione and Anna Charlton
pointed out in a July/August 1993 guest column
for ANIMAL PEOPLE,  following the June 1993 U.S.
Supreme Court verdict that overturned a ban on
animal sacrifice in the city of Hialeah,
Florida,  “The Court did not hold animal
sacrifice to be protected;  rather,  the Court
held that these practices could not be prohibited
by legislation that was specifically intended to
target religious practices alone.  A municipality
may still ban animal sacrifice,  so long as these
prohibitions are in accordance with neutral and
generally applicable rules,  such as state
anticruelty statutes.  Moreover,  a municipality
may still ban all slaughter outside of licensed
packing houses or prohibit completely the keeping
of certain types of animals.”

However,  U.S. regulation of ritual
slaughter exists within a muddle of
jurisprudence.  In Tanzania,  by contrast,  where
40% of the population are Muslim and mostly
observe hallal slaughter,  the Tanzania Act
reinforces the intent of hallal by giving the
force of secular as well as religious law to five
specific requirements of hallal meant to reduce
animal suffering.  One of these requirements is
that animals must not be slaughtered within sight
of other animals.  Poland has since 1997 had a
similar law,  but most European nations do not.
Assert Vapnek and Chapman,  who perhaps
have never witnessed animals being killed,
“There is no scientific evidence that animals
react to the sight of another animal being
slaughtered, so long as the animal is slaughtered
properly–e.g., immediately losing consciousness
and collapsing and therefore not being able to
vocalize or otherwise manifest fear.  The concern
for animals’ sensory experience immediately prior
to slaughter is mainly responding to
philosophical and religious beliefs.”

Slaughterhouse designer Temple Grandin disagrees,
having introduced curved ramps for animals going
to slaughter to help ensure that they do not ever
see others being killed.

“Despite being perhaps the most important
areas of animal welfare,”  Vapnek and Chapman
conclude,  “since housing and management issues
affect animals’ day-to-day existence up until the
point of transport and slaughter,  housing and
management are not extensively regulated either
at international or national level.”
–Merritt Clifton