1. INTRODUCTION: TRANSPLANTING THE TRADE AND ANIMAL WELFARE DEBATE
To genuinely engage with a new frontier of justice, for animals or otherwise, requires what Bell Hooks calls a ‘radical openness’ of mind, of being able to receive new, different, and challenging ideas from a space of learning, teaching, and humility.Footnote 1
The frontier of justice for animals is in great need of radical openness to address the impact of trade law and policy on animal welfare. Instead of demonstrating radical openness, trade law and policy is paternalistic toward animals. This means it propagates law about animals rather than law for animals. It fails to respect and reflect animals’ own sense of what is in their best interests.Footnote 2 The paternalism of trade law stems partly from the disparity between liberal trade ideology and the normative and ethical underpinnings of the animal liberation movement. This paternalism also results from the failure of global animal law to establish itself as an effective counter-discourse: it has been deeply infiltrated by the trade law linkage debate.
Radical openness is increasingly lacking among commentators on the interface between trade and animal welfare. Thus, a critical gap in the research remains: we do not know, empirically, what the impact of trade on animal welfare is. Researchers are increasingly complacent with regard to the heavy hand of international trade law in global governance for animals. They are not asking fundamental empirical and critical questions about the impact of trade. Therefore, insufficient critique is launched against policymakers in Europe, who prove consistently comfortable with prioritizing trade objectives over animal welfare protection. A radical openness is needed, which can be facilitated by transplanting the trade and animal welfare debate from the fringes of the trade linkage debate to the core of the emerging academic discourse on global animal law.Footnote 3
This article addresses the paternalism of trade law and policy towards animals in three parts. Firstly, it sets out the collision between dichotomous trade and animal welfare priorities in legal and political systems. This involves an analysis of the linkage debate and the effects of normative divergence between trade liberators and animal liberators.
Secondly, the article elucidates the roles of the World Trade Organization (WTO) and the European Union (EU) in structuring attempts towards the reconciliation of these competing objectives. This section uses empirical research to reveal the continued dominance of trade in European policymaking and its negative impact on animal welfare. Although the impact of trade on animal welfare has amassed some attention from academics and practitioners,Footnote 4 the existing literature typically speculates about potential impacts of trade upon animal welfare without investigating this quantitatively.Footnote 5 This article fills a crucial research gap and identifies four component parts to the impact of trade on animal welfare.
Thirdly, the article reflects on the dominance of trade objectives by critically analyzing the role of trade law and policy as a central driver of global animal law. It situates itself within the global animal law academic space while also critiquing that discourse for its complacency regarding the adoption of trade-centric presumptions and practices. This section concludes that research on the impact of trade has been restricted by the force of trade law and its associated research tradition, and that precise empirical research is difficult to conduct because of limitations in the trade data, owing to the paternalism inherent in trade policy practices. This article aims to inspire radically open research on the impact of trade on animal welfare.
2. TENSIONS AND COLLIDING PRIORITIES IN TRADE AND ANIMAL WELFARE
2.1. Trade and Animals: Bridging the Dichotomy
The practice of trading animals and their products has a deep-rooted history beginning with the export of wool from Crete to Egypt between 2000 and 1500 BC.Footnote 6 Animal trade has benefited humankind significantly, enabling us to evolve from hunter-gatherers to settled agriculturalists.Footnote 7 However, just like animal agriculture, the exploitative dynamic of animal trade has evolved through periods of war, colonization, and industrialization, becoming increasingly harmful over time.Footnote 8 Ancient donkey-trodden trading routes are now found buried beneath modern road infrastructure or serve as hiking trails. The modern vision of trade in animal products is, instead, one of shipping containers filled with leather or seal skin, refrigerated trucks transporting chilled meat cuts, and lorries carrying live animals across borders to slaughter.
Trade in intensively farmed meat, dairy, and fish is particularly troubling because of its volume and the suffering it forces upon animals.Footnote 9 Live sheep shipped for slaughter from Australia to southeast Asia and the Middle East regularly perish from heat stress.Footnote 10 Scottish salmon exports reached a record high in 2018Footnote 11 despite recent reports on the negative impacts of the industry on animal welfare.Footnote 12 Ukraine has developed a battery-cage egg industry for export to the EU, undermining the objectives of the EU's domestic ban on battery-cage egg farming.Footnote 13
Trading animals and their products is inherently exploitative in that it treats animals as property.Footnote 14 The practices associated with modern animal trade resemble the Western factory farming model, which is regarded by many animal liberationists as a vampiric, dystopian nightmare.Footnote 15 Despite this, trade in animal products continues to grow. Extra-EU trade in animal products almost doubled during the last decade, amounting to over 65 billion euros in 2015 (about 1.9% of all extra-EU trade).Footnote 16
This reveals the overwhelmingly economic objectives of the actors involved and the great disparity between the objectives of free trade proponents and animal liberators. Trade in animal products occurs, regardless of the impact on animals, because imported products are cheaper, of better quality, or more readily available than comparable domestic products.Footnote 17 This is reflective of the liberal ideology upon which international trade is based: it aims to achieve economic efficiency so as to improve economic growth for states, incomes for individuals, employment rates, and standards of living.Footnote 18
The liberal values and ideologies underpinning trade in animal products is far removed from the post-humanist,Footnote 19 feminist,Footnote 20 rights-based,Footnote 21 and welfaristFootnote 22 ethics that are deployed by animal liberationists to promote the protection of animals in society, in policy, and in law. The gulf between the two is widest when the animal liberationists are critical researchers and abolitionist activists.Footnote 23 Their ideologies are fundamentally incompatible with the liberal ideology that supports animal trade. The gulf narrows in the case of policy-oriented animal welfare non-governmental organizations (NGOs), which typically curtail abolitionist leanings in order to promote concrete policy changes in the short to medium term.Footnote 24
Moderate lawmakers and policy officials working in animal welfare have an even greater likelihood of peacefully coexisting with liberal trade ideology. Animal protection in law typically relies upon a welfarist balancing act between human and animal interests in order to protect animals from unnecessary suffering.Footnote 25 This is how the EU has attempted to bridge the divergence between animal interests and liberal or free trade ideology.Footnote 26 However, generally speaking, free trade has been conceptually separated from and prioritized over so-called ‘non-trade concerns’ such as animal welfare.
2.2. Prioritizing Free Trade over Trade Impact Concerns
The linkage debate is a conceptual battleground where the notion of free (or liberal) trade (described as the ‘normative justification for the WTO’)Footnote 27 and the treatment by the WTO of so-called ‘non-trade concerns’ (primarily environmental and labour concerns) have been dissected and scrutinized. The linkage debate has kept the WTO in check for, at times, providing inadequate regulatory autonomy to its members to enact trade restrictive measures aimed at environmental protection or safeguarding labour rights.Footnote 28
Liberal economic objectives are at the heart of the General Agreement on Tariffs and Trade (GATT)Footnote 29 – enacted in the ‘Bretton Woods’Footnote 30 era of trade – and of the WTO.Footnote 31 Consequently, the restriction of trade in order to protect, for example, animal welfare goes against the substantive trade liberalization rules of the WTO. This dichotomy is perpetuated in WTO disputes and in much of the literature on the linkage debate.Footnote 32 This section sets out this dichotomous thinking before outlining a more critical, nuanced approach. This also justifies and frames the empirical research below.
In the first US – Tuna case before a GATT panel, a United States (US) dolphin-protection measure was found to discriminate against Mexican fishing fleets.Footnote 33 The panel dismissed the US conservation objectives, permitting members to pursue ‘full use of the world's resources’.Footnote 34 The GATT panel decision was criticized for failing to give due deference to environmental objectives and for classifying environment-protecting trade restrictions as extraterritorial measures disallowed by WTO law.Footnote 35
However, over time a gradual shift has occurred. The WTO now shows more deference to members’ objectives regarding trade impact concerns, including the environment and animal welfare.Footnote 36US – Shrimp diverged from the earlier ruling in US – Tuna by stating that extraterritoriality, conditioning market access upon the exporting country adopting a particular policy is probably a common feature of measures that fall within the scope of the Article XX GATT exceptions.Footnote 37 Thus, WTO members are not barred per se from restricting trade in order to pursue environmental protection. The US – Tuna saga has evolved to permit further space for members’ trade restrictions with environmental objectives.Footnote 38
Extensive commentary on these disputes will not be repeated here.Footnote 39 In sum, the WTO has come much closer to striking a fair balance between liberal free trade objectives and issues such as environmental protection.Footnote 40 However, the evolving application of the WTO rules in disputes has revealed the potentially detrimental force of trade law and has given rise to concern among academics.Footnote 41 This has led to a critique of dichotomous thinking within the linkage debate.
Critical inquiries require asking what it is that ‘free trade’ is to be free from.Footnote 42 The current trade law regime amalgamates three conceptions of free trade: (i) trade free from discrimination;Footnote 43 (ii) trade free from international coercion whereby one state may try to influence another to adopt particular policies;Footnote 44 and (iii) trade ‘free of national regulation under a broad laissez-faire conception’.Footnote 45 So-called ‘non-trade concerns’, such as animal welfare, are regarded as exceptions to free trade rather than as encompassed within the scope of free trade.Footnote 46 This conceptual dichotomy lies at the heart of WTO reluctance to legitimize ‘non-trade issues’.
However, the meaning of free trade is not static or pure.Footnote 47 Rather, it is a highly contextual concept that ‘varies in meaning across time and across political cultures’.Footnote 48 Law can be used to ‘renew and re-imagin[e]’ that concept.Footnote 49 In this way, developments within global animal law could impact upon the normative underpinnings of trade law.
Unfortunately, contributors to the linkage debate have largely embraced the dichotomous thinking introduced above, accepting concerns such as animal welfare to be ‘non-trade issues’.Footnote 50 Andrew Lang has pointed out that ‘it is not self-evident, of course, that the major international institution presiding over the global trade system has no business addressing the social and environmental impacts of that system, and that such impacts are not “trade issues”’.Footnote 51
It is not an inevitability that ‘free trade’ must exclude animal protection, permitting it only as an exception. It is simply that the current system of trade law and policy accepts and perpetuates this dichotomous thinking. This is in spite of strong indications that free trade, in its current formulation, will fail to remain a democratically viable concept if it continues to neglect fundamental ethical dilemmas within and between communities regarding the use and treatment of animals. This is reflected in the public opposition to the WTO at the Battle in SeattleFootnote 52 and, more recently, in the public backlash to the negotiations for the EU-US Transatlantic Trade and Investment Partnership (TTIP).Footnote 53 Indeed, this article rejects the presupposition of a conceptual division between ‘non-trade issues’ and trade policy, as well as the presupposed economy-centric conception of what EU and WTO trade policy is centrally and importantly about. For this reason, the article will refer to issues typically dubbed ‘non-trade issues’ as ‘trade impact issues’.
3. TRADE LAW AND POLICY TO THE DETRIMENT OF GLOBAL GOVERNANCE FOR ANIMALS
The significance of trade as a global animal law question is great, but should not be overstated. Other factors also impact upon the effectiveness of animal law. These include poor enforcementFootnote 54 and lack of political will to fill gaps in animal law.Footnote 55 Some of these factors impact upon animal welfare in tandem with trade and, thus, make proving causality difficult. However, others partly result from the impact of trade, reinforcing arguments for causality. For example, consumer awareness is harmed by WTO restrictions on the use of labels.
Other forms of transnational cooperation also have the potential to impact upon animal welfare. These include the negotiation of non-binding animal welfare standards, multilateral environmental agreements, and international investment agreements.Footnote 56 However, only trade can directly alter public consumption by permitting new products into the market.Footnote 57 Trade is one of the most challenging ways in which a domestic, ethical, political agenda may be threatened by an extra-jurisdictional or transnational force. Thus, the impact of trade law and policy on animal welfare must be understood and counteracted if animal protection efforts are to be effective.
3.1. Roles in Reconciliation
In this regard, it is problematic that the rule-exception approach of WTO law has, for much of the WTO's history, minimized trade impact issues and excluded them from the concept of free trade.Footnote 58 For environmental issues, that balance has shifted through a series of disputes.Footnote 59 There is also reference to sustainable development in the WTO AgreementFootnote 60 and numerous multilateral environmental agreements with institutional mechanisms that cooperate with the WTO.Footnote 61 Animal issues have neither of these advantages.
The WTO treaties are silent on the issue of animal welfare.Footnote 62 Thus, there is no basis upon which to pursue the harmonization of animal welfare standards through the WTO. Even if such grounding did exist, the risk of lowest common denominator results would be high,Footnote 63 and effective dual-purpose regulation which might, for example, promote the adoption of an animal welfare-encompassing free trade policy, tends to be elusive.Footnote 64
In lieu of this, animal welfare has been the subject of negative integration through the WTO dispute settlement body. In the landmark EC – Seal Products case, Norway and Canada challenged the EU seal regime, which bans the placing on the market of seal products.Footnote 65 There is moral concern regarding seal hunts owing to the inhumane suffering that sealing often entails.Footnote 66 The Appellate Body ruled that banning trade to protect animal welfare was provisionally justified under Article XX(a) GATT as a matter of public morality.Footnote 67 However, the EU seal regime ultimately failed to comply with the chapeau to Article XX GATT because exceptions to the trade ban were found to entail discriminatory treatment.Footnote 68 The EU implemented the recommendation of the WTO dispute settlement body to limit the exceptions to its trade ban, thus strengthening the impact of the measure on animal welfare.Footnote 69
This case proves the traditional narrative – of the EU as a leader on animal welfare and the WTO as its primary obstacle – to be oversimplified.Footnote 70 Further, the collision of trade and animal welfare policy in the EU reveals that the EU hardly acts like the global leader in the legal protection of animals that it claims to be.Footnote 71
Indeed, the EU's animal protection efforts are frequently undermined by its own trade policy. For example, the EU has vast ambitions with regard to its bilateral trade policy, including trade in animal products, but it has poorly implemented its 2008–15 Animal Welfare Strategy.Footnote 72 The EU made a proposal on animal welfare to the WTO but swiftly abandoned it following resistance.Footnote 73 The EU unilaterally restricts trade in some controversial animal products – such as seal, or cat and dog fur – but it permits and promotes trade in most animal products without conditioning this on animal welfare protection.Footnote 74 The EU now maintains a policy of including animal welfare in all bilateral trade agreements, but it does so with variable success.Footnote 75 Arguably, the EU's feeble attempts at integrating animal welfare concerns in its trade policy are mere attempts at green-washing, as it effectively continues to liberalize trade in animal products and to permit harmful industrialized farming practices within its Member States.Footnote 76
The remainder of this section explores empirically the impact of trade on animal welfare in the EU. The following section will show that, on the basis of this analysis, neither the EU nor the WTO has succeeded in reconciling these two policy areas in a way that gives adequate consideration to animal welfare. However, emerging research on global animal law is relatively blind to this shortcoming because of the disproportionately large contribution of trade law to the ‘tentative and embryonic’ global governance for animals.Footnote 77
3.2. Mapping the Impact of Trade
The impact of trade on animal welfare can be broken down into four component parts: (i) open markets; (ii) low animal-welfare havens; (iii) a chilling effect; and (iv) a lack of labelling.
The open markets condition allows low-welfare imports to enter a liberalized marketplace. This marketplace may itself enact more advanced animal welfare rules, but these rules do not apply to imported animals and animal products. If production shifts to states with poor regulation, low animal-welfare havens will arise. This occurs because trade favours cheap, ‘efficient’ production.Footnote 78
There are two forms of chilling effect that may follow, one of which will be investigated in this article. Firstly, domestic producers now find themselves in a situation where they must comply with high-welfare standards, but at the same time they must compete with cheaper, low-welfare imported products.Footnote 79 A chilling effect, or even a race to the bottom, may occur if strained domestic producers attempt to regain competitiveness by pressuring governments to halt the development of, weaken, or abandon domestic welfare standards. There is not enough space to tackle this type of chilling effect in this article. Instead, the focus will be on a second chilling effect: the pressure that has been felt by WTO members to refrain from restricting trade in order to protect animal welfare, thus facilitating low-welfare imports.
Finally, the lack of effective product labelling for animal welfare ensures that this negative cycle will continue.Footnote 80 Animal welfare labels on the market are ineffective because they are voluntary, with poor market capture and low recognizability.Footnote 81 Requiring the labelling of imports is potentially compatible with WTO law but has rarely been pursued as part of the trade policies of WTO members.Footnote 82 If consumers who are concerned about animal welfare are unaware of the conditions in which animals are reared, they are more likely unwittingly to purchase cheap, low-welfare products. This constitutes a market failure caused by the insufficient availability of information.
The first three components of impact will be analyzed empirically in the paragraphs that follow. The fourth component, the lack of labelling, is well documented and will not be analyzed here.
3.3. The First Component: Open Markets
Three case studies were selected to quantify the problem of low-welfare imports and low animal-welfare havens. These relate to the EU-wide bans on the use of battery cages for laying hens, on the use of sow stalls, and on the use of veal crates. The three case studies were selected because their clear implementation dates facilitate assessments of changes in trade levels, as well as for their relevance to animal welfare policy. Close confinement systems impose lifelong suffering upon animals. Oppressive cages make most natural types of behaviour impossible, reducing unique sentient creatures to productive automatons.
Laying hen battery-cage ban
On 1 January 2012, an EU ban on the use of battery cages for laying hens came into force.Footnote 83 The directive permits battery-caged eggs to be imported from non-EU countries – thus prioritizing trade objectives over animal welfare objectives – and it permits the continued use of ‘enriched cages’ in the EU.Footnote 84
In 2012, the first year of implementation of the ban, the EU imported 15,572 tonnesFootnote 85 of egg products (both in-shell and non-shell). Available data does not indicate the production method of imported eggs. This masks the impact on animal welfare and supports arguments that trade policy is ill-suited as a primary driver of governance for animals. It is possible, for our purposes, to extrapolate estimates based on the methods of production in the exporting states.
The US accounted for almost half of EU egg imports in 2012. In 2018, around 18% of the US laying flock was housed in cage-free systems.Footnote 86 This is compared with 44% of EU hens kept in non-cage (‘alternative’) systems.Footnote 87 The marginal production of cage-free eggs in the US, coupled with the permissibility of exporting caged eggs to the EU, would suggest that most US exports to the EU are from battery-caged hens.
Following the US, the EU imported 2,362 tonnes of eggs from Albania, 1,745 tonnes from Argentina, 1,541 tonnes from India, and 1,133 tonnes from Bosnia and Herzegovina. Compassion in World Farming cites a world poultry study in 2008 which found that 100% of Argentinian laying hens and 78% of Indian laying hens were reared in cage systems.Footnote 88 As unenriched battery cages are the global standard in the absence of contrary legislative requirements, it is reasonable to assume that the caged systems used in these states are unenriched battery cages.
Sow stall ban
Sow stalls house pigs individually, in a restrictive way, to protect piglets from suffocation. The restrictions in mobility and socialization entail poor welfare and the inhibition of natural types of behaviour. The EU imposed a partial ban on the use of sow stalls; this came into effect on 1 January 2013.Footnote 89 It prohibits the use of sow stalls except for the first four weeks of pregnancy and for one week before farrowing. The directive does not regulate imports.
The EU imported 34,487 tonnes of pork in 2013, the first year of implementation of the ban. The majority of these imports come from Switzerland where sow stalls are banned completely.Footnote 90 Thus, the issue of sow stalls is not pressing in the case of imports of pork to the EU.
Veal crate ban
Veal crates severely restrict the movement of calves by tying their necks (in some cases for their entire lives). The use of veal crates was prohibited from 31 December 2006 for all calves older than eight weeks in EU holdings.Footnote 91
In 2007, the first year of implementation of the veal crate ban, the EU imported 305,480 tonnes of beef and veal. Among the top exporters to the EU are Brazil, Uruguay, Argentina, Australia and the US. Veal crates are not used in Australia.Footnote 92 The industry in the US has also moved away from veal crates following a vote by the American Veal Association.Footnote 93 However, intensive farming methods such as veal crates are commonly used in the Latin American countries that provide the highest number of veal products to the EU.Footnote 94
Note, however, that beef and veal are treated as a single category in all the readily available trade statistics. This practice disregards and masks the suffering of animals that are reared in crates. On the basis of the available data, it is impossible to distinguish veal from beef or high-welfare from low-welfare meat. This frustrates research efforts aimed at exposing the extent of animal suffering in veal farming.
Discussion of existing trade flows
EU imports of eggs, pork, and beef and veal account for a small proportion of total EU consumption, but they are not insignificant. The continuation of import practices would show a negative impact of the prioritization of trade objectives over animal welfare because it permits low-welfare animal products onto the EU market. However, one can only reach this conclusion speculatively because of the lack of trade data regarding methods of production. This severely restricts the ability of researchers to quantify the impact of trade on animal welfare and, thus, recommend and work towards improvements. If we are to assume that at least some low-welfare animal products are imported into the EU, the absence of mandatory labelling would mean that concerned consumers cannot counteract this negative impact of EU trade policy by choosing high-welfare products. Therefore, the potential welfare gains for animals offered by the relevant legislation are at risk of being diluted.
3.4. The Second Component: Low Animal-Welfare Havens
Laying hen battery-cage ban
Production costs for enriched-caged eggs in compliance with EU law are estimated to be 7% higher than for conventional battery-caged eggs.Footnote 95 Anticipating this, academics have communicated concerns about low animal-welfare havens arising as a result of the ban.Footnote 96 The trade figures demonstrate a slight stagnation in growth of EU egg production following the ban, which was set off by a compensatory rise in imports. However, both developments were modest in scope and of a temporary nature.
EU egg production has been growing consistently. Some stagnation occurred in 2012, the first year of implementation of the battery cage ban,Footnote 97 but production rates continued their long-term growth trajectory thereafter and amounted to 7.7 million tonnes in 2016.Footnote 98 Prior to the ban, EU imports had dropped from 6,864 kilograms (kg) of eggs in 2010 to only 3,792 kg in 2011. This number increased dramatically to 7,210 kg in 2012, the first year in which the ban was implemented. However, this stabilized quickly, dropping to 3,203 kg in 2013.
These figures do not clearly support the assumption that the EU ban resulted in the development of animal-welfare havens. However, a number of factors may have contributed to an overall drop in imports.Footnote 99 Further, the total import statistics mask particularities that could be suggestive of the existence of low animal-welfare havens.
For example, the EU authorized Ukraine to begin to export eggs to the EU after the implementation of the ban. Ukraine can export eggs to the EU tariff-free under two generous quotas granted following the ban's enforcement.Footnote 100 This is not conditional upon the eggs meeting EU welfare standards and all Ukrainian laying hens are caged.Footnote 101
Controversially, Dutch companies and the Dutch government also began to invest in Myronivsky Hliboproduct (MHP), the large-scale poultry company in Ukraine.Footnote 102 It is contrary to the spirit of the ban on battery cages that an EU member state benefits financially from battery farming outside the EU, especially when those products are exported to the EU.
Ukraine only began to export eggs to the EU in 2014, but it is now the second largest exporter of eggs to the EU. While Ukraine exported a modest 36 tonnes of eggs to the EU in 2014, these exports increased to 2,125 tonnes in 2016 and continue to rise.Footnote 103 EU trade policy further exposes its consumers to low-welfare Ukrainian eggs.
In other cases, the EU has acted more conscientiously with regard to low-welfare egg imports. For example, it proposed the granting of favourable trade terms in the TTIP to the US only for those eggs that met European welfare standards, and the EU reportedly has imposed the same condition on imports of eggs in an agreement with the MERCOSUR countries.Footnote 104
Sow stall ban
The EU sources most of its imported pork from Switzerland where pig welfare standards provide better legal protection than those in the EU. Thus, low animal-welfare havens have been avoided in this case because the EU has a reliable flow of group-housed pork from Switzerland. If the EU further liberalizes trade in pork with other countries, this situation could change.
Veal crate ban
Noting the combined category of beef and veal, it is impossible to scrutinize the veal trade closely. Following implementation of the veal crate ban, production of beef and veal fell in the EU to a low of 7.2 million in 2013. However, imports of beef and veal also fell in the first year following implementation from 376,885 tonnes in 2006 to 305,840 tonnes in 2007 and to 191,910 tonnes in 2008.
The top exporters of beef and veal to the EU are Brazil, Uruguay, Argentina, Australia, the US, Namibia, Botswana, New Zealand, and Paraguay. Despite the inadequate data available, the fall in imports to the EU of beef and veal suggests that no animal-welfare haven has arisen in this case. However, the EU's bilateral trade negotiations with the MERCOSUR countries creates a risk of increased low-welfare imports.Footnote 105
Discussion of low animal-welfare havens
The data presented here fails to demonstrate a mass shift in production to non-EU countries following enactment of the bans discussed. However, while low animal-welfare havens are not a widespread problem, the case of Ukrainian egg production indicates that low animal-welfare havens can arise in the current regulatory environment. The available trade data, which does not specify method of production, does not make this immediately clear.
It is fortunate that the EU has a reliable supply of high-welfare Swiss pork at present, although the EU's ambitious bilateral trade policy puts this situation at risk. The EU routinely offers sizeable pork tariffs in trade negotiations.Footnote 106 This may lead to new or enhanced export markets to the EU in pork reared through intensive confinement.
Sophisticated economic modelling would be required to analyze all the forces acting upon the trade in animal products in order to determine why low animal-welfare havens have not yet arisen. This is neither possible nor necessary here. The fundamental conclusion to be drawn here regards the way in which the available data masks animal harm and the dangers posed by EU trade policy to animals, making precise analyses of trade impact impossible. This is true of the data for the egg and the veal trades.
Tariff classification systems, relied upon to categorize trade data, are very precise.Footnote 107 They divide animal products according to weight, bone content, temperature (chilled, frozen, etc), and so on. Yet, these classifications ignore method of production and welfare considerations. This makes it impossible for researchers to observe the rate of low-welfare imports and the occurrence of low animal-welfare havens. In turn, this hinders the development of research aimed at improving the negative impact of animal welfare on trade.
On the basis of this conclusion, it is hoped that this initial investigation will inspire further research into the relevant trade data in order to predict how and when low animal-welfare havens may arise.
3.5. The Third Component: Chilling Effect
The impact of trade in the formative years of the WTO
The establishment of the WTO in 1995 caused concerns in the animal welfare community that it would ‘inhibit the development of animal welfare protection legislation’.Footnote 108 Indeed, a chilling effect can be observed on the use of trade policy to protect animal welfare by the EU. EU trade measures that were drafted around this time and that directly addressed animal welfare were subject to renegotiation, delay, and limitation. Three examples in this respect are the 1999 Laying Hens Directive, the 1991 Leghold Traps Regulation, and the 2009 Cosmetics Regulation.
The 1999 Laying Hens Directive prohibits the use of battery cages for laying hens in the EU without restricting imports.Footnote 109 The EU knew this would competitively disadvantage its producers.Footnote 110 During EU parliamentary questions, the Commission gave no clear indication as to how it would handle the threat of cheap, unregulated imports.Footnote 111
The 1991 Leghold Traps Regulation prohibits the use of cruel leghold traps within the EU and the importation of particular furs, unless the exporting state regulates trapping methods to meet internationally agreed ‘humane trapping standards’.Footnote 112 Leghold traps capture animals with a steel jaw that does not kill the animal but restrains it, causing severe injury and distress.
The import restriction has had little practical effect. Enforcement of the regulation was delayed and weakened. The US and Canada threatened to challenge the regulation under the WTO rules.Footnote 113 In response, the European Commission postponed the start date of the ban from 1 January 1995 to 1 January 1996.Footnote 114 It proposed another year-long delay,Footnote 115 apparently because of ‘doubts as to the legality of the ban’.Footnote 116 The ban went into effect on 1 January 1996 but the Commission blocked implementation by ‘asking customs authorities not to implement it’.Footnote 117 The Commission counter-intuitively described implementation of the ban by Member States as illegal.Footnote 118
Further, the EU failed to apply the fur import ban to the US, Canada, and Russia (the main fur-exporting countries) for many species.Footnote 119 A tripartite agreement was negotiated instead which did ‘little to discourage the use of leghold traps’.Footnote 120
The 1976 Cosmetics Directive (now re-implemented as the 2009 Cosmetics Regulation) prohibits the performance of animal testing for cosmetic products and ingredients in the EU or the placing on the market of such products (including imports).Footnote 121
Enforcement was postponed several times from 1 January 1998 to 11 September 2004, 11 March 2009 and 11 March 2013 for different parts of the regulation.Footnote 122 The proposal for the second postponement notes doubts regarding the WTO legality of the measure.Footnote 123 This reveals that the EU's reservations regarding the WTO rules affected the decision to delay implementation. The literature is critical of the Commission's ‘cautious analysis’ of the WTO rules.Footnote 124
The EU was aware of the potential for diverging animal welfare standards to negatively affect high-welfare producers in the EU. This was recognized in the Preamble to and Article 8 of the 1998 Farming Directive.Footnote 125 However, the three examples discussed in this section suggest that concern over the GATT panel's history of unfavourable treatment towards environmental objectives and the potential for costly challenge under the WTO's new dispute settlement mechanism were strong enough to override concerns for the competitiveness of producers in the EU.
The impact of trade in the early 2000s
The chilling effect surrounding the establishment of the WTO has persisted. This fact has largely been ignored by those commentators who were critical of the WTO's impact around the time of its establishment.
Most EU animal welfare legislation enacted following the WTO's establishment does not contain trade restrictions.Footnote 126 For example, when proposing higher welfare standards for broiler chickens, the European Parliament proposed the regulation and prohibition of imports that did not comply.Footnote 127 Yet the final version of the measure contains no such import ban.Footnote 128 There are exceptions where the EU restricts trade to pursue conservation and animal health objectives.Footnote 129 Also, in two cases (cat and dog fur, and seal products) the EU enacted trade restrictions to protect animal welfare.Footnote 130 However, the EU displays an overall hesitance. This may have been caused, in part, by its failed attempt to initiate a multilateral dialogue on animal welfare and trade through a proposal to the WTO.Footnote 131 WTO members were not enthused, arguing that this was an issue for the OIE (World Organization for Animal Health).Footnote 132 As a result, the EU shifted its focus to include animal welfare in its bilateral trade policy.Footnote 133
The prohibitions on imports of cat and dog fur and seal products do not strike at the most pressing animal welfare issues impacted upon by trade. Intensive livestock farming for meat and dairy production causes more significant and long-lasting harm to welfare than the killing of wild seals for fur.Footnote 134 Further, the cat and dog fur import ban justifies its limited scope by reference to societal preferences regarding animal husbandry.Footnote 135 This choice has nothing to do with welfare science.
The EU deals with animal welfare inconsistently in its trade policy. However, such inconsistency has been found to be compliant with the WTO rules.Footnote 136 This is because requiring moral consistency would paralyze states, making animal welfare regulation impossible until they could regulate ‘every aspect of animal welfare to an equally high standard’ in a ‘perfectly simultaneous and consistent fashion’.Footnote 137 Thus, regulating animal welfare for public moral reasons in an inconsistent fashion may not be disingenuous per se.
Nonetheless, inconsistency on the part of the EU has been regarded as extreme caution in the face of uncertainty regarding WTO law.Footnote 138 Peter Stevenson, Chief Policy Adviser with Compassion in World Farming, notes that EU officials often cite incompatibility with WTO rules as the reason for failing to take policy action on animal welfare.Footnote 139 Further, the EU's willingness to tackle some animal welfare issues more strongly than others may reveal other motivating factors such as a desire to satisfy a moral appetite for animal welfare without negatively affecting European farmers. The EU's response to the legal certainty provided by EC – Seal Products is revealing in that respect.
The impact of trade after EC – Seal Products
EC – Seal Products is a landmark case for animal welfare. It is the first case to rule that public moral concern for animal welfare is a legitimate justification for trade restrictions under WTO law.Footnote 140 As such, EC – Seal Products provides a rebuttal of the EU's caution regarding trade restrictions for animal welfare.Footnote 141 Academics have noted that EC – Seal Products opens ‘the door to future animal welfare defenses’.Footnote 142
However, the EU has failed to use this legal clarity to rectify the chilling effect on animal welfare legislation that followed the establishment of the WTO. The EU has not amended the measures that were scaled back and no new welfare-based trade restrictions have been proposed.
Key officials have, at times, downplayed the significance of EC – Seal Products. In 2015, in the context of a debate concerning trade restrictions of horse blood products to alleviate animal suffering, Commissioner Vytenis Andriukaitis stated that the ‘EU cannot impose its animal welfare standards on third countries due to very stringent requirements under WTO law’.Footnote 143 His statement indicates a lack of understanding of the legal issues at hand. EC – Seal Products confirms that the EU can restrict trade to protect the public morality of its own citizens. It can use unilateral measures, such as the seals regime, to protect the welfare of animals both domestically and abroad in the pursuit of this objective. This does not amount to the imposition of standards on third countries. Of course, one cannot assume that the outcome of EC – Seal Products would be replicable in disputes regarding other animal products. However, the EU has shown no ambition to explore what the outcome of this case might mean for other trade restrictions aimed at protecting public morality related to animal welfare.
A recent European Commission report on the impact of the EU's international animal welfare activities on the competitiveness of European livestock production highlights the limited role the EU envisages for trade policy in tackling animal welfare goals. It also highlights a focus on bilateral trade policy as opposed to unilateral or multilateral mechanisms.Footnote 144 The limited role for trade policy is further evidenced by the neglect of trade policy demonstrated in the early work of the EU's new Animal Welfare Platform.Footnote 145 The EU has, in fact, inspired some improvements to animal welfare regulation through its bilateral trade policy, such as with the EU-Chile Free Trade Agreement.Footnote 146 However, the EU has demonstrated that it is not updating its policy regarding trade and animal welfare in the light of EC – Seal Products.
Discussion of the chilling effect
Trade, linked to the establishment of the WTO, has had a chilling effect on the EU's animal welfare legislation. This impact has persisted despite the EC – Seal Products dispute, which provided regulatory autonomy for WTO members to restrict trade in order to protect animal welfare. Thus, arguably the EU continues to prioritize trade over animal welfare objectives without the excuse of WTO restrictions and without sustained attention and criticism in academic circles.
The sporadic nature of EU legislation on animal welfare and trade could be attributed to the subjective nature of legislating on moral issues and the moral schizophrenia common in moral attitudes towards different species of animal.Footnote 147 It could also point to a problematic balancing of political priorities and legal objectives. Indeed, the persistence of the chilling effect supports arguments that the WTO has been used as a scapegoat to mask low political will for strong animal welfare protection in the EU.Footnote 148
4. PATERNALISTIC TRADE LAW AND POLICY AS ILL-SUITED PRIMARY DRIVERS OF GLOBAL GOVERNANCE FOR ANIMALS
Attempted reconciliations of trade and animal welfare have had a limited impact on the lives and wellbeing of animals. While this partly owes to the chilling effect of the WTO, this policy failure has persisted despite the favourable ruling in EC – Seal Products. Thus, trade policy is a poor domain in which to pursue the legal protection of animals.
Traditionally, animal law researchers were alert to the dangers posed to animals by trade policy, particularly by the WTO.Footnote 149 However, as the WTO has proven itself capable of incorporating animal interests into dispute settlement proceedings, researchers have grown complacent. Most commentators avoid dwelling on the fact that, despite the favourable ruling set out in EC – Seal Products, trade policy continues to take precedence over animal protection.Footnote 150
EC – Seal Products has been hailed as a great success for animals.Footnote 151 Thomas Kelch, and Andrew Lurie and Maria Kalinina have argued that the case provides members with a solid footing on which to protect animal welfare.Footnote 152 Charlotte Blattner, while noting the limitations of the WTO as a forum for animal protection, argues that the WTO has progressed the international conversation on animal welfare more than any ‘global animal treaty law’.Footnote 153 Katie Sykes argues that developments in trade law have the ‘potential to materially improve the level of effective legal protection for animals around the world’.Footnote 154
These points are well made. For example, the present author shares Sykes’ view that the WTO has become an important context for the development of animal protection norms.Footnote 155 However, a strong critique should be launched against situating the development of animal norms within trade policy contexts so as to transcend the liberal conception of animal protection which goes no further than forbidding ‘unnecessary’ suffering. This liberal conception diverts attention from the harm that continues to be caused by the animal trade. It is reasonable for animal welfare NGOs to seek to influence trade policy within the existing structures of EU policy as restricted by WTO law.Footnote 156 However, the academic literature should provide more critical thought. While trade law and policy have been the primary drivers of a global discussion regarding animal welfare, they are inappropriate drivers for the following reasons.
Firstly, it is not positive for the long-term advancement of animal welfare that the WTO anchors animal protection to the fickle and geographically variable concept of public morality. Also, relying on dispute settlement for progress is problematic because it depends upon WTO members deciding which disputes to raise. Thus, EC – Seal Products could improve wild seal welfare but there is silence regarding trade that facilitates more long-lasting harm, such as unregulated imports of battery-caged eggs.
Secondly, regulating trade in animals and their products presupposes and reinforces a cultural understanding of animals as property.Footnote 157 Trade policy fails to recognize the special status of animals afforded by other legal regimes. For example, the product classification systems relied upon by trade policy categorize animal products according to their use by humans.Footnote 158 Trade in animals and animal products is also frequently measured by monetary value or by weight, rather than by headcount.Footnote 159 These practices brutalize and objectify animals, encouraging a self-reinforcing culture of disregard for animal interests. Thus, trade law is more primitive than animal welfare laws which afford animals a sui generis legal status:Footnote 160 they are owned like property but they are also afforded certain special forms of protection.Footnote 161
Trade law and policy have disproportionately impacted upon the normative underpinnings of global governance for animals or ‘global animal law’. This is as a result of both the force of trade law and the absence of animal-centric global law. Global animal law is in a very early stage of development. Animal law has taken hold in most domestic jurisdictions.Footnote 162 However, there is no international treaty on animal welfare and efforts to enact a Universal Declaration on Animal Welfare at the United Nations have not met with success.Footnote 163 The closest thing there is to an animal law treaty is soft law in the form of non-binding animal welfare standards in the terrestrial animal health code of the World Organization for Animal Health.Footnote 164
Despite its lack of development, global animal law is emerging, at least as an academic discourse. There is now a global animal law section at the Max Planck Institute,Footnote 165 a Global Animal Law Project,Footnote 166 two published symposiums on global animal law,Footnote 167 and a conference series.Footnote 168 This academic discourse must build its own voice and world view, distinct from the trade linkage debate. Otherwise, the pre-eminence of trade law is likely to result in a balancing of interests that weighs in favour of a liberal conception of free trade.
WTO law has attained a degree of legal enforceability that is unmatched by most other issues of global governance.Footnote 169 Thus, it is not negative, per se, that animal welfare should find a place within the WTO.Footnote 170 However, it is detrimental that the most influential pronouncements on animal welfare at the global level have emanated from trade officials using trade-centric language in pursuit of economic objectives. There is no expertise on issues of animal welfare at the WTO.Footnote 171 Thus, the WTO legal structure should be rejected as the absolute limit and framework for research on trade and animal welfare.Footnote 172 Instead, the WTO system should be examined for ‘evidence of its larger effects’ in order to inspire reform.Footnote 173 This requires transplanting trade and animal welfare research into the global animal law academic space.
The pre-eminence of trade law and the linkage debate partly explains why empirical research on the impacts of trade on animals has not been forthcoming. Growing complacency among animal liberators regarding trade law has slowed the output of critical research. Further, the pre-eminence of trade policy and its negligible treatment of animal welfare has made empirical research on trade and animal welfare particularly difficult. Thus, future research on trade and animal welfare should be conducted within a research tradition separate from the linkage debate.
Situating such research within the global animal law discourse permits critical commentary on the treatment of animals as property and of the WTO as a governor of animal interests. It allows for a more animal-centric perspective. This perspective leads to a critical conception of free trade – a conception that includes trade impact concerns – and the rejection of the centrality of the objectives of economic stakeholders.
5. CONCLUSION
The precise, empirical impact of European trade policy on animal welfare protection remains elusive. Imports of animal products clearly continue and they are not conditioned on meeting EU welfare standards. Trade data hides whether these imports include low-welfare products, though it seems very likely. Investigating low animal-welfare havens raises the same issues, creating a vulnerability of over-reliance on particular cases, such as Ukrainian egg exports. This case provides potential evidence of a negative impact of trade and clear evidence of a prioritization of trade policy over animal welfare objectives. With regard to the chilling effect, WTO-wariness clearly persists among key officials within the European Commission and the resulting impact on regulation is observable. This conclusion paves the way for further research into policymaking at the European institutions regarding trade and animal welfare.
The conclusions of this article make the case for further critical research into the empirical impact of trade on animal welfare. Clearly trade policy is prioritized over animal welfare. However, quantifying impact is made impossible by the ignorance of animal harm displayed by the trade sphere. This leads to the conclusion that research on the trade and animal welfare interface alternatively must be situated among emerging research on global animal law.
The conception of free trade adopted by the linkage debate, which reinforces unhelpful dichotomies, is obstructive to progress towards better treatment of animals. Trade law is restricted because the property status of animals is deep-rooted within its infrastructure. Conversely, global animal law could centre upon animal interests and so has the potential to elevate beyond viewing animals’ property status as an inevitability.
To conclude, if animals are to be protected effectively, we must begin to debate the trade and animal welfare interface within the context of global animal law, maintaining a radical openness of mind at every step.
