The Appeal to Science and the Formation of Global Animal Law

Transcription

1 The European Journal of International Law Vol. 27 no. 2 The Author, Published by Oxford University Press on behalf of EJIL Ltd. All rights reserved. For Permissions, please journals.permissions@oup.com The Appeal to Science and the Formation of Global Animal Law Abstract Katie Sykes * This article critically examines the use of science in the formation of global animal law. It focuses on two international legal decisions that made a significant contribution to the development of global animal law in 2014: the report of the Appellate Body of the World Trade Organization (WTO) in EC Seal Products, and the judgment of the International Court of Justice (ICJ) in Whaling in the Antarctic. The authority of science, and the interaction between scientific and juridical methods, lie at the heart of both of these decisions. In Whaling in the Antarctic, the ICJ ruled that Japan s whaling programme in the Southern Ocean is not for purposes of scientific research within the meaning of the International Convention on the Regulation of Whaling. In EC Seal Products, the WTO Appellate Body ruled that the European Union s ban on seal products was justifiable under Article XX(a) of the General Agreement on Tariffs and Trade as a matter of public morals because it was based on European citizens moral objections to cruelty in seal hunting. Both cases, as well as the controversies over whaling and sealing that led up to them, illustrate the persuasive power of the appeal to science, enlisting scientific objectivity and rigour to underpin the credibility of legal arguments. At the same time, both judgments vindicate the final authority of jurists to determine questions of justice and confirm that such questions cannot be simply outsourced to science. The article analyses the way science is used in the reasoning of both tribunals and finds that both decisions appropriately distinguish between the roles of scientific and legal reasoning. It concludes by proposing, following the direction suggested by Judge Cançado Trindade s separate opinion in Whaling in the Antarctic, that the basis of international obligations towards animals is to be found not so much in scientific evidence as in our shared humanity and ethical conscience. We all know that this decision is based not on scientific fact, but on public opinion that has been manipulated by vegetarian multinationals. Canadian Senator Céline Hervieux-Payette, on the WTO s decision in EC Seal Products *Assistant Professor, Faculty of Law, Thompson Rivers University, Kamloops, Canada. csykes@tru.ca. EJIL (2016), Vol. 27 No. 2, doi: /ejil/chw013

2 498 EJIL 27 (2016), Introduction In 2014, two important decisions from international tribunals on legal issues relating to the status and treatment of animals came out within a few weeks of each other: the report of the Appellate Body of the World Trade Organization (WTO) in European Community (EC) Seal Products, 1 and the judgment of the International Court of Justice (ICJ) in Australia v. Japan (Whaling in the Antarctic). 2 While species conservation and biological diversity have long been important principles of international environmental law, these two cases and the controversies out of which they arose implicate additional ethical and legal questions about animal protection, including the moral implications of animal suffering and the near-total prohibition under international law on commercial killing of whales, whether endangered or not. It is a significant development that these questions about the protection of animals have been the subject of serious consideration by prominent international tribunals, a sign that global animal law a body of transnational principles concerning the status and treatment of non-human animals is in the process of establishing itself not just in theory but also in positive international law. This article explores the background of global animal law as an emerging idea in international legal scholarship as well as the development of animal-protective norms in the two recent cases. It also examines a theme common to EC Seal Products and Whaling in the Antarctic, the role of science as a justificatory discourse in international law (the appeal to science ). The proposition that animal protection has achieved some status (however tentative) as an international legal principle, which is novel and contentious, relies in part on an underlying claim that such a principle merits universal recognition and transcends diverse national and cultural points of view about animals. Increasing scientific understanding of other animals plays an important role in the wider discourse about animal welfare and animal rights, 3 and the attraction of science as a justificatory discourse is all the stronger when it comes to the place of animalprotective norms in the international legal framework because the authority of science can claim at least to some extent to stand apart from such national differences. In this sense, the cases examined in this article engage the familiar theme of science as a source of value-neutral expertise-based legitimacy in international decision making. 4 1 European Communities Measures Prohibiting the Importation and Marketing of Seal Products Report of the Appellate Body (EC Seal Products AB Report), 22 May 2014, WT/DS400/AB/R and WT/DS401/AB/R. 2 Whaling in the Antarctic (Australia v. Japan; New Zealand Intervening), Judgment, 31 March 2014, ICJ Reports (2014) 226, available at (last visited 9 April 2016). 3 An important recent example is the Cambridge Declaration on Consciousness, reprinted in Philip Low, Cambridge Declaration on Consciousness (2012), available at CambridgeDeclarationOnConsciousness.pdf (last visited 9 April 2016), which was proclaimed at the Francis Crick Memorial Conference on 7 July 2012 by a prominent international group of cognitive neuroscientists, neuropharmacologists, neurophysiologists, neuroanatomists and computational neuroscientists, which announced that the weight of evidence indicated that consciousness is not unique to humans but is shared by non-human animals, including all mammals and birds, and many other creatures. The Declaration announced an impressively scientifically credentialed position on a question whether animals are conscious (and therefore have the capacity to experience suffering and pleasure) at the heart of ethical evaluation of the way humans treat other animals. 4 J. Peel, Science and Risk Regulation in International Law (2010), at 56.

3 The Appeal to Science and the Formation of Global Animal Law 499 And yet the decisions under consideration differ in important ways from the familiar paradigm of relying on scientific expertise in global environmental and public health risks. 5 Neither case fits comfortably into the discourse of risk assessment. Both disputes involve aspects of animal protection that can be distinguished from the management of environmental risk. Whaling in the Antarctic played out in the context of an international regime that, to a certain extent, treats whales lives, in practice, as inherently valuable and worthy of protection, in that it prohibits commercial hunting of all whales regardless of whether they are members of a threatened species. EC Seal Products arose from the European Union s (EU) legislative response to concerns about animal suffering. In both cases, the authority of science was an important legitimizing factor, but these cases involved different questions from the management of complex and technical risks, where science can plausibly be put forward as an objective and universally applicable basis for rational decision-making. 6 Animal protection is not scientifically complex in the same way that, say, climate change or the genetic modification of food are. Although both of these cases were about science in important ways, they were both decided primarily on the basis of legal and policy analysis rather than on the basis of science. Furthermore, the reasoning in the cases cannot be completely divorced from the contexts in which they arose: international conflicts over the moral legitimacy of hunting seals and dolphins that engage profound ethical questions about human treatment of animals. Although neither the WTO nor the ICJ ventured into these fundamental conflicts, which lurked beneath the surface of their respective legal analyses, it was arguably these deeper issues that exerted a more significant influence over the reasoning and the outcomes than did the questions of science. As the quotation from Canadian Senator Céline Hervieux-Payette in the epigraph suggests, a basis in scientific fact may play an important part in justifying animalprotective legal norms, and, conversely, the absence of such a basis may be invoked to delegitimize them. A scientific pedigree can be particularly important when international differences of interest and opinion are at stake and may help to defend such norms against the accusation that they are based on more than mere emotion or irrational prejudice. The adjudicators in both EC Seal Products and Whaling in the Antarctic were concerned with scientific evidence and scientific fact. However, their main tasks were to balance competing principles and to resolve interpretive questions 7 the kind of tasks 5 Ibid.; see also C. Foster, Science and the Precautionary Principle in International Courts and Tribunals (2011). 6 Peel, supra note 4, at In EC Seal Products, the balance between non-discrimination obligations under the World Trade Organization (WTO) treaties and the right to regulate of WTO members, as set out in Article XX (EC Seal Products AB Report, supra note 1, at para 5.125) and, in Whaling in the Antarctic, the balance between the objectives of conserving and exploiting whales and between the obligations of states participating in the international whaling regime and their right to take whales for purposes of scientific research (Whaling in the Antarctic, supra note 2, at para. 56). See further discussion in Part 6 in this article. Furthermore, both cases played out in the context of broader international controversies (broader than the specific legal questions at issue in the disputes) in which the opposing sides staked out fundamentally opposed moral and ethical positions.

4 500 EJIL 27 (2016), that cannot be abdicated to science, as both decisions reflect. 8 Perhaps most importantly for observers of the emergence of global animal law, both cases raised questions about the legal status of animal-protective norms beyond the well-established environmental value of species conservation, 9 when not very long ago such norms could only have been considered at best peripheral in international legal discourse. 2 The Animal Turn and the Emergence of Global Animal Law The term the animal turn was coined to describe the significant increase in intellectual and political attention to the question of the animal that has occurred over the last few decades. 10 Some commentators trace the origins of the animal turn to the founding of the Great Ape Project in This initiative, co-founded by philosophers Peter Singer and Paola Cavalieri, advocated for the extension of certain basic rights the rights to life, liberty and freedom from torture to great apes other than humans (gorillas, chimpanzees, bonobos and orangutans). Members of the project include prominent primatologists, anthropologists and biologists as well as ethical philosophers. In 1994, the Great Ape Project published a collection of essays, reflecting the diverse disciplinary backgrounds of the contributors, building the argument for the adoption of a United Nations Declaration on the Rights of Great Apes. 12 Although so far there is no universal declaration of great ape rights or of animal rights in general, 13 initial steps have been made towards establishing a place for animal protection in international law. These initiatives have laid the foundations for the formation of global animal law. There has been a noticeable, if still tentative, progression from a well-developed and sophisticated body of international legal rules and principles dealing with biological diversity and the conservation of species to the 8 G. Shaffer, Risk, Science, and Law in the WTO: The Centrality of Institutional Choice, Panel Discussion on Risk, Science, and Law in the WTO, 104 ASIL Proceedings (2010) 19, at This was clearly the case in EC Seal Products, where the move to protect seals arose from concerns about suffering and the seals affected are not part of numerically threatened populations. The claim needs more elaboration with respect to Whaling in the Antarctic, as the international whaling regime is often thought of, and was characterized by the International Court of Justice (ICJ), as being concerned with conservation. However, the whaling regime can also be viewed as reflecting in practice not only a commitment to protecting whales from extinction but also (since the current commercial whaling moratorium applies to all whale species, whether threatened or not) a further recognition of whales as inherently valued creatures that should not be killed. See further discussion in Part 6 in this article. 10 Ritvo, On the Animal Turn, 136 Daedalus (2007) 118, at 119, noting that during the last several decades, animals have emerged as a more frequent focus of scholarship and that the animal turn has suggested new understandings of the role of animals and their relationship to humans. Weill, A Report on the Animal Turn, 21(2) Differences (2010) 1, at 1, describing a recent explosion of conferences, books and discussion networks around the question of the animal. 11 Weill, supra note 10, at P. Cavalieri and P. Singer (eds), The Great Ape Project (1993). 13 However, there have been some moves in this direction at the domestic level. In 2008, a committee of the Spanish Parliament passed a resolution that non-human great apes should have the rights advocated by the Great Ape Project. Several countries prohibit scientific experimentation on great apes.

5 The Appeal to Science and the Formation of Global Animal Law 501 gradual inclusion of the welfare and protection of individual animals within the scope of international law. In this way, international law has come to reflect some degree of concern for the animal as an individual being. This is not to suggest, of course, that animals have the status of legal persons in international law, which would be clearly wrong as a matter of doctrine. What I mean is that there is now some recognition in international legal discourse that individual animals have attributes, like sentience and the capacity to suffer, that arguably entitle them to at least some minimal protections or normative consideration as individuals. In 2010, when the second edition of Lyster s International Wildlife Law was published, it included a new chapter on animal welfare. 14 There would not have been much material for such a chapter when the first edition came out 25 years before; indeed, the authors note the absence of reference to this matter in standard and contemporary accounts of international law. 15 The change from the first edition to the second edition exemplifies the effect of the animal turn in international law. Notably for the purposes of this article, the authors of the second edition of Lyster s International Wildlife Law draw attention to the special concern in international law for the protection of whales and seals not only for the conservation of species but also for the prevention of unnecessary suffering of individual animals. 16 The international community s concern with the welfare of whales and seals can be seen as early as 1958, when it was articulated in a unanimous resolution at the UN Conference on the Law of the Sea that states prescribe, by all means available to them, those methods for the capture and killing of marine life, especially of whales and seals, which will spare them suffering to the greatest extent possible. 17 Subsequent actions to protect whales and seals developed into the two disputes that culminated in the cases under discussion in this article. In 1982, the International Whaling Commission (IWC) adopted the moratorium on commercial whaling that is still in place today. In the 1980s, activists around the world mobilized against the Canadian seal hunt, and the European Economic Community (as it was then) banned products from harp and hooded seal pups. 18 The ban was later extended (in 2009) to all seal products by the EU measure that Canada and Norway challenged in EC Seal Products. 19 The IWC moratorium on commercial whaling was adopted due to concerns about the perceived overexploitation of whale stocks, the lack of accurate data on whale population levels and the ineffectiveness of management procedures to regulate commercial whaling. 20 In theory, it is in place temporarily, pending the creation of a new 14 M. Bowman, P. Davies and C. Redgwell, Lyster s International Wildlife Law (2nd edn, 2010), at The status of animal welfare as a principle of international law is also discussed in Sykes, Nations Like unto Yourselves: An Inquiry into the Status of a General Principle of International Law Concerning International Welfare, 49 Canadian Yearbook of International Law (2011) Bowman, Davies and Redgwell, supra note 14, at Ibid., at UN Conference on the Law of the Sea, Resolution 5 on the Humane Killing of Marine Life, Doc A/ CONF.13/L56 (1958), vol. 2, Annexes, at EEC Council Directive 83/129, OJ 1983 L 91/ Council Regulation 1007/2009, OJ 2009 L 286/36; Council Regulation 737/2010, OJ 2010 L 216/1. 20 Bowman, Davies and Redgwell, supra note 14, at 165.

6 502 EJIL 27 (2016), management scheme based on a comprehensive assessment of whale populations, but these have proven difficult to achieve. 21 Debate within the IWC is polarized between pro-whaling states and states that take a strong conservationist, whale-protecting stance, 22 and this divergence is reflected in disagreement about the objectives of the international whaling regime 23 as well as the protracted delay in reviewing the moratorium. 24 For members of the public and policy makers in some member states, whales are special animals that have a high degree of intelligence and social organization, and their commercial exploitation is morally objectionable. 25 Although this point of view has not prevailed at the IWC, it probably plays a part in the ongoing impasse over the review of the commercial whaling moratorium, which, in effect, has so far meant that the moratorium remains in place. In 1991, anticipating some of the themes of the Great Ape Project, international lawyers Anthony D Amato and Sudhir Chopra published an article in the American Journal of International Law arguing that whales have the right to life under customary international law. 26 D Amato and Chopra argue that there is (indeed, that there already was more than two decades ago when their article appeared and, arguably, for some time before that) a broadening international consciousness that it is morally wrong to kill whales. When this consciousness is added to the evolving practice that has imposed increasingly strict constraints on whaling, the mental (opinio juris) and material (state practice) elements of a new binding custom are present. D Amato and Chopra describe the entitlement corresponding to this binding obligation as an emergent entitlement of whales not just on behalf of whales to a life of their own. 27 Like the proposed declaration of great ape rights, this is a strong claim by (some) international jurists that (certain) non-human animals are entitled to fundamental legal rights. In 2010, a symposium of scholars from the fields of legal theory, science and philosophy, which was held at the University of Helsinki, released a Declaration of Rights for Cetaceans, which affirmed the status of cetaceans (whales and dolphins) as persons with the right to life, liberty and wellbeing. 28 This declaration of rights (like 21 Ibid., at Ibid., at As reflected in the submissions of the parties in Whaling in the Antarctic; Australia emphasized conservation objectives, while Japan emphasized the objective of sustainable exploitation of whales. Whaling in the Antarctic, supra note 2, at para Bowman, Davies and Redgwell, supra note 14, at Gillespie, Animals, Ethics and International Law, in P. Sankoff and S. White (eds), Animal Law in Australasia: A New Dialogue (2009) 333, at D Amato and Chopra, Whales: Their Emerging Right to Life, 85 American Journal of International Law (AJIL) (1991) Ibid., at 23 (emphasis in the original). 28 The Declaration of Rights for Cetaceans is available at (last visited 9 April 2016). See also Declaration of Rights for Cetaceans: Whales and Dolphins, 14(1) Journal of International Wildlife Law and Policy (2011) 75. Participants in the symposium included Sudhir Chopra and Great Ape Project co-founder Paola Cavalieri. Cavalieri explains the background to the Declaration, including the international legal groundwork laid by D Amato and Chopra. Cavalieri, Declaring Whales Rights, 42(2) Tamkang Review (2012) 111.

7 The Appeal to Science and the Formation of Global Animal Law 503 the one for great apes) has not been adopted so far by any official international body. But, arguably, the declaration and the ideas it reflects have played a part in reshaping the way we think about whales and dolphins, making the recognition of binding legal rights at some time in the future a more plausible prospect. In 2012, the Helsinki proposal for cetacean rights was discussed in a session at one of the most prominent mainstream scientific events, the annual meeting of the American Association for the Advancement of Science. 29 In 2013, the Indian government announced that India s Central Zoo Authority would not grant recognition to dolphinaria after several Indian states had proposed setting up dolphin exhibits as tourist attractions, stating that cetaceans in general are highly intelligent and sensitive, that dolphins should be considered as non-human persons and, as such, should have their own specific rights and that it was morally unacceptable to keep dolphins in captivity for entertainment purposes. 30 The idea of basic, universal rights of animals is a signature idea of the animal turn that has special relevance for international law. Experts in ethics, law and the scientific disciplines have collaborated to make the case for full-fledged fundamental rights, akin to the most basic human rights, for certain animals. And although these claims are not expressed in positive international law, 31 there is recognition in international law even if only in small ways of at least some animals as being significant in themselves as individuals (not just as members of a species that might be under threat) and as being capable of experiencing suffering that should be prevented if it is excessive or unnecessary. 3 Global Animal Law and the Appeal to Science The international initiatives proposing basic rights for great apes and cetaceans are informative examples of the intertwining of science, ethics and legal philosophy in the development of global animal law. The Great Ape Project builds an argument for great ape rights on a foundation of observation and analysis from scientists who are internationally recognized as leaders in their fields. Primatologist Jane Goodall describes her field observations of chimpanzees, emphasizing the unique personality of each individual chimpanzee and the striking similarities between chimpanzee and human behaviour. Chimpanzee gestures, for example, are not only uncannily like many of our own but are also used in similar contexts and clearly have similar meanings Whales Are People Too: A Declaration of the Rights of Cetaceans, The Economist (25 February 2012), available at (last visited 9 April 2016). 30 Government of India Ministry of Environment and Forests, Central Zoo Authority, Circular Regarding Policy on Establishment of Dolphinarium, 17 May 2013, available at co.uk/2013/05/dolphinaria-to-be-banned-in-india/ (last visited 9 April 2016). 31 As indeed is arguably the case for many quite well-recognized human rights, such as the right to a clean environment and the right to development, although admittedly these are the subject of official declarations by international bodies and/or have been incorporated into positive law at the regional level (the right to development is protected in the African Charter on Human and People s Rights 1982, 21 ILM 58 (1982), Art. 22) and so have progressed further towards full legal status than have any rights proposed for animals. 32 Goodall, Chimpanzees Bridging the Gap, in Cavalieri and Singer, supra note 12 at 12, 13.

8 504 EJIL 27 (2016), Evolutionary biologist Richard Dawkins explains the genetic continuity between human beings and other great ape species, noting that molecular evidence indicates our common ancestor with chimpanzees was extant between five and seven million years ago not long by evolutionary standards. 33 D Amato and Chopra s article arguing for whales right to life starts by discussing the speculation by scientists that whales have higher than human intelligence, based on researchers findings about the size of whale brains and the complexity of whale communication. 34 In the more recent work promoting a cetacean bill of rights, science is an important part of the justificatory framework. Paola Cavalieri s article on the proposed declaration of rights for cetaceans argues that cetaceans should be recognized as persons in part because of their cognitive sophistication. The scientific evidence that she discusses includes an impressively technological-sounding study that used computed tomography to investigate the pattern of encephalization in some fossil cetacean species in the past 47 million years to conclude that primate and cetacean brains have evolved, albeit along different paths, to similar levels of cognitive ability. 35 Another justification put forward for cetacean rights is research indicating that whales and dolphins possess what is often thought of as a defining human attribute: culture. One of the participants in the Helsinki group was Hal Whitehead, a pioneering marine biologist whose fieldwork and writings have built an impressive case for the existence of culture in cetaceans. Culture is defined for this purpose as information or behaviour acquired through social learning, rather than being genetically transmitted. 36 These examples bring out two themes that are common rhetorical strategies in the enlistment of science to support animal rights. One is that animals are like us in morally relevant respects. This argument goes back at least as far as Jeremy Bentham s famous assertion that the question is not, Can they reason? nor, Can they talk? but, Can they suffer? 37 For Bentham, animals are like humans in that they are sensitive creatures that experience suffering, and other differences between animals and humans (the presence or absence of a tail or language) are not relevant to whether animals deserve protection. Advancing scientific knowledge about animals has given us evidence of other similarities, at least with certain kinds of animals, that have arguably even more profound moral relevance: intelligence, social organization, communication and culture. These are the very characteristics we may think of when called upon to explain what it is that makes human beings persons and bearers of rights. The second theme is genetic kinship between human beings and other animals. The fact of evolutionary kinship is a powerful reminder of the connections between human beings and other animals. The argument that these biological family ties undermine the relegation of non-human animals to the category of non-persons also has a long pedigree, going back to the popularization of Darwinian evolutionary 33 Dawkins, Gaps in the Mind, in Cavalieri and Singer, supra note 12, 80 at D Amato and Chopra, supra note 26, at Cavalieri, supra note 28, at H. Whitehead and L. Rendell, The Cultural Lives of Whales and Dolphins (2015), at J. Bentham, Principles of Morals and Legislation (1961 [1781]), at 310, n. 1.

9 The Appeal to Science and the Formation of Global Animal Law 505 theory. Victorian polymath Edward Payson Evans took up the ethical implications of Darwin s discoveries, arguing that anthropocentric psychology and ethics, which treat man as a being essentially different and inseparably set apart from all other sentient creatures were nothing more than tribal prejudice, logically unsustainable in the light of new scientific research. 38 Evans contended that the supposedly fixed, final and impassable barrier between humans and other animals had been revealed as a wavering, indeterminable and almost evanescent line of demarcation. 39 In substance, if not in literary style, this sounds remarkably like Richard Dawkins contribution to the Great Ape Project more than a century later. Both of these rhetorical strategies epitomize the appeal to science; enlisting the authority of science to back up claims for enhanced protection of animals. However, what exactly is the nature of the work that science is being asked to do, particularly when it comes to the development of global norms regarding animals? And what are the proper limits of its role? 4 The Role and Limits of the Appeal to Science The argument that there are, or should be, international norms concerning animals necessarily rests on claims of universality (as do claims regarding other international norms of a moral nature, such as international human rights). But the notion of universal standards applicable to our interactions with animals is very controversial. A common objection to this idea starts by pointing out that our views of right and wrong with respect to animals, and, in particular, our views on which animals deserve protection and where the line lies between acceptable and unacceptable treatment, are culturally specific. Setting one culture s values up as universal, the argument goes, is really just a way to disguise the imposition of those values on others who do not share them, which is little more than cultural imperialism. The anti-anti-whaling movement in Japan, for example, portrays whaling as a culturally distinctive practice and a hypersensitive symbol of Japanese national identification and the countermobilization against the international anti-whaling norm as unjustified Western cultural imperialism, imposing foreign notions of animal protection on the Japanese. 40 As a rejoinder to this kind of objection, the appeal to science is an attractive strategy. International law cannot enlist democratic accountability to support its legitimacy. According to prevailing theoretical understandings, it is created through the consent of states (though even this is in question with respect to claims for universally binding 38 E. P. Evans, Evolutional Ethics and Animal Psychology (1898), at 83. This book is in the public domain and is available electronically at Evans was also the author of a fascinating and quite eccentric study of animal trials in medieval and early modern Europe, which remains indispensible reading for anyone interested in the topic. E. P. Evans, The Criminal Prosecution and Capital Punishment of Animals: The Lost History of Europe s Animal Trials (1906), available at cu (last visited 9 April 2016). 39 Evans, supra note 38, at Blok, Contesting Global Norms: Politics of Identity in Japanese Pro-Whaling Mobilization, 8(2) Global Environmental Politics (2008) 39, at 54, 47.

10 506 EJIL 27 (2016), rights), but the actual or notional consent of states does not require the consent of the people of those states. Since the legitimacy of international law cannot rest on democratic accountability, Jacqueline Peel argues, it depends on its capacity to provide effective solutions to common problems, utilizing standards or decision-making criteria that command widespread acceptance and deference. 41 Science is supposed to be universal and objective, above any particular cultural tradition or agenda. In certain contexts, it can function as an international currency of authority. Particularly when it comes to the regulation of risks to health and safety and the environment, as Peel notes, expertise based on scientific and technical knowledge is typically viewed as a plausible basis for legitimating the authority of international rules. 42 The deeper attention and richer knowledge that the animal turn in scientific disciplines has brought to our understanding of animals is a welcome development, and new ethical and juridical perspectives on the status of animals that are grounded in this more profound scientific insight are concomitantly more persuasive and robust. The credibility that science, with its claims to objectivity and universality, can add to the formation of animal-protective legal norms is especially important for international law, haunted as it is by the spectre of the civilizing mission. 43 Nevertheless, there are limits to the work that science can and should be asked to do in the formation of global animal law. An insightful articulation of where these limits lie can be found in philosopher Alva Noë s response to a recent science-based argument for recognizing legal personhood in dogs, which was advanced by a neuroscientist named Gregory Berns. Berns wrote an opinion piece in the New York Times in 2013 arguing that dogs legal status as property should be reconsidered. 44 His conclusion was based on a fascinating research project in which pet dogs were trained to undergo MRI scans while they were fully conscious. The scans allowed Berns and his collaborators to look directly at [dogs ] brains (albeit in the limited sense that MRI scanning permits) and gather data about their cognitive processes and emotional responses. 45 The experiments, which showed brain activity suggesting dogs emotionally respond to dogs and humans they know, convinced Berns that dogs seem to have emotions just like us and, therefore, that dogs are people, too. 46 Noë s response, in a commentary on the National Public Radio 41 Peel, supra note 4, at Ibid., at 14. As the European Court of Justice noted in Case T-13/99, Pfizer Animal Health v. Council, [2002] ECR II-3305, para. 201, scientific legitimacy is distinct from political or democratic legitimacy, and is not a sufficient basis for the exercise of public authority. At the same time, however, scientific authority may set some boundaries on the discretion of public authorities (in that case, the European Council could act in a manner that went against the findings of its own scientific advisers only on the basis of careful and impartial consideration and transparent reasoning (at para. 203). 43 The notion that the project of international law is a civilizing mission a transmission out from the European centre to the colonial periphery of culturally specific values of liberal humanism (or, in other words, a kind of cultural imperialism and an acceptable cover for the brutal realities of economic and military imperialism) is perhaps most famously explored by Martti Koskiennemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law (2002). 44 Berns, Dogs Are People Too, New York Times (5 October 2013), available at (last visited 9 April 2016). 45 Ibid. 46 Ibid.

11 The Appeal to Science and the Formation of Global Animal Law 507 website, suggested that this kind of experiment misses the point: If you need information about what is happening in the brain of a dog to know that dogs think and have feelings and emotions, then either you ve never met a dog or your own humanity is in doubt. 47 Noë points both to the limits of scientific authority and to the need for a much different framework of thought for resolving questions about our relationships with dogs and, indeed, with other animals: the sense of justice and the intuitive response to the nature of our fellow beings that he refers to as our humanity. Science cannot confirm for us whether dogs experience the same emotions we do, much less tell us what legal protections they should be accorded, which is an ethical, political and moral question, not an empirical one. A further point about the limits of the role of science is that it cannot fully resolve or bypass the problems of cultural bias, sentimentality and partiality that we have to face when we grapple with difficult ethical and policy questions. Scientific does not perfectly equate with objective, and just because a proposition has some endorsement by the scientific community does not necessarily mean that it will be generally accepted as authoritative. It is well recognized that scientific knowledge is contingent, situated and shaped by ethical and political positions. 48 Some scholars in the field of science and technology studies characterize the relationship between science and policy as one of co-production, where policy influences the production and stabilization of knowledge, while knowledge simultaneously supports and justifies policy. 49 Determining what justice requires of us in our relationships with animals is a profoundly challenging moral and political problem. In the international context, the problem is compounded by the further challenge of achieving international consensus and the tension between universal principles and respect for sovereignty and diversity. These problems are, importantly, not in the category of risk regulation that Peel singles out as being particularly well suited to science-derived rules. The themes discussed above are borne out in the two cases discussed in the next sections, EC Seal Products and Whaling in the Antarctic. In their judgments, the WTO Appellate Body and the ICJ both recognized the role of science in informing juridical decisions on animal-protective norms. Both tribunals also underscored their own ultimate responsibility for interpreting the relevant legal texts and demarcating how much deference would be given to the choices of the EU and Japan within the relevant legal regimes. 47 Noë, If You Have to Ask, You ll Never Know, Cosmos and Culture (National Public Radio science blog) (11 October 2013), available at (last visited 9 April 2016). 48 Haraway, Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective, 14 Feminist Studies (1988) 575. See also A. Lang, World Trade Law after Neoliberalism (2011), at 332, observing that in an era of post-positivist understandings of scientific knowledge the ability of science to provide a singular and singularly reliable truth about the world is no longer taken for granted and the production of scientific truth [is] socially and culturally contingent. 49 Lidskog and Sundqvist, When Does Science Matter? International Relations Meets Science and Technology Studies, 15 Global Environmental Politics (2015) 1, at 6.

12 508 EJIL 27 (2016), EC Seal Products In EC Seal Products, the WTO Appellate Body ruled that a measure adopted by the EU restricting the importation and sale of seal products was provisionally justified under Article XX(a) of the General Agreement on Tariffs and Trade (GATT) as a matter of public morals because it was based on European citizens moral objections to cruel killing methods in the seal hunt. 50 The EU legislation consisted of a ban on all products made of, or containing, seal, coupled with exemptions for certain categories of products. The most significant exemption was for seal hunted by indigenous communities in traditional hunts carried out primarily for subsistence (the indigenous communities [IC] exception). The ban and the exceptions are together referred to in the WTO s Appellate Body decision, and in this article, as the EU Seal Regime. In the case, Canada and Norway stated that the EU Seal Regime discriminated against them in effect, in violation of the WTO s anti-discrimination rules, because the exceptions allowed for importation of significantly more products from Greenland. Greenland s seal industry is almost entirely carried out by Inuit sealers, and almost all Greenlandic products in principle could enter the EU through the IC exception, while a far smaller proportion of products from the complainants could benefit from it. The Appellate Body confirmed that the EU Seal Regime was provisionally justified as necessary to protect public morals under the exception set out in Article XX(a) of GATT. This was an important vindication of the EU s right to adopt animal-protective measures consistent with its WTO obligations. The Appellate Body went on to find, however, that the EU Seal Regime failed to comply with the requirement under the chapeau of Article XX that measures not be applied in a manner that constitutes arbitrary or unjustifiable discrimination. 51 This finding arose from the way the exceptions to the overall ban operated. The Appellate Body noted that these exceptions most significantly, the IC exception disadvantaged Canada and Norway in comparison to Greenland. It concluded that the difference in treatment was not reconcilable with the EU s objective of addressing public moral concerns regarding seal welfare, since IC hunts could also involve animal suffering. 52 In February 2015, the European 50 General Agreement on Tariffs and Trade 1994, 1867 UNTS 187, available at docs_e/legal_e/06-gatt_e.htm (last visited 9 April 2016). 51 The Panel in EC Seal Products had reached the same conclusion but on a different legal basis. The Panel was of the view that its analysis under Article 2.1 of the WTO Agreement on Technical Barriers to Trade (TBT Agreement) 1994, 1868 UNTS 120, also applied to GATT Art. XX chapeau. European Communities Measures Prohibiting the Importation and Marketing of Seal Products Report of the Panel (EC Seal Products Panel Report), 25 November 2013, WT/DS400/R / WT/DS401/R / and Add. 1, paras ), so that its determination that the European Union (EU) Seal Regime violated Art. 2.1 of the TBT Agreement led more or less automatically to a conclusion that it also failed to comply with the chapeau. The Appellate Body found that the Panel had erred in applying the same legal test under both treaties and in failing to analyse independently the EU Seal Regime s conformity with the specific terms and requirements of the Art. XX chapeau. It then went on to complete the analysis and determined that the EU Seal Regime did not meet the requirements of the chapeau (EC Seal Products AB Report, supra note 1, paras ). 52 The Panel determined that the same animal welfare concerns as those arising from seal hunting in general also exist in IC hunts, which can cause the very pain and suffering for seals that the EU public is concerned about. EC Seal Products Panel Report, supra note 51, para The EU did not appeal this finding, as the Appellate Body noted. EC Seal Products AB Report, supra note 1, para

13 The Appeal to Science and the Formation of Global Animal Law 509 Commission responded to these findings by proposing adjustments to the EU Seal Regime to bring it into compliance with WTO law. The amendments would, inter alia, limit the IC exemption to hunts being conducted in a manner which reduces pain, distress, fear or other forms of suffering of the animals hunted to the extent possible, while having regard to the traditional way of life and the subsistence needs of the Inuit and other indigenous communities. 53 This was the first WTO case in which animal welfare was recognized as being an aspect of public morals under GATT Article XX(a). The Panel decision even acknowledged the growing importance of animal welfare in international legal discourse. In findings that were not disturbed by the Appellate Body, the Panel noted that various actions concerning animal welfare at the international as well as national levels suggest in our view that animal welfare is a globally recognized issue 54 and that animal welfare is a matter of ethical responsibility for human beings in general. 55 Europe had long opposed seal hunting on ethical grounds, and its opposition had, for just as long, provoked accusations of unfairness and moral hypocrisy. After a decades-long international battle over sealing, the EU was well aware of arguments that its opposition was based on soft-hearted fondness for an attractive and charming animal, and it met such arguments in part by turning to the authority of science. As part of the process leading up to the adoption of the ban, the EU commissioned a report from the Panel on Animal Health and Welfare of the European Food Safety Authority (EFSA) 56 on the animal welfare aspects of the killing and skinning of seals (EFSA Report). 57 The EFSA Report is framed as a scientific assessment of the risks of various methods of seal hunting, as carried out in practice, which are identified as threats to animal welfare, including ineffective stunning prior to bleeding seals out or dragging and skinning seals while they are still alive and conscious. The EFSA panel conducted what it described as a qualitative, rather than quantitative, risk assessment due to the limited amount of quantitative data on the adverse 53 European Commission, Proposal for Regulation of the European Parliament and of the Council amending Regulation (EC) No. 1007/2009 on Trade in Seal Products, available at (last visited 9 April 2016). The proposal would also restrict products of indigenous hunting carried out for commercial rather than subsistence purposes and would eliminate another exception permitting the sale of by-products of seal culling for management purposes to be sold, as the Appellate Body ruled that this exception could not be applied in a WTOcompliant manner. In addition, Canada and the EU have signed a joint statement setting out a framework for cooperation to enable access to the EU of seal products resulting from traditional hunts conducted by Canadian indigenous communities. Commission Decision on the Joint Statement by Canada and the European Union on Access to the European Union of Seal Products from Indigenous Communities of Canada, C(2014) 5881 final, 18 August 2014, Annex 1, available at docs/joint_statement_c_2014_5881_f1_annex_en.pdf (last visited 9 April 2016). 54 EC Seal Products Panel Report, supra note 51, para Ibid., para The European Food Safety Authority (EFSA) is an independent European agency funded by the EU budget, with responsibility for providing scientific advice on risk assessment regarding food and feed safety. EFSA, About EFSA, available at (last visited 9 April 2016). 57 Scientific Opinion of the Panel on Animal Health and Welfare on a Request from the Commission on the Animal Welfare Aspects of the Killing and Skinning of Seals, 610 EFSA Journal (2007) 610, at

14 510 EJIL 27 (2016), effects of hazards on animal welfare. 58 This explanation meant that the EFSA panel did not assign numerical probabilities to the risks in question but, rather, ranked the risks and identified the areas of concern. There have been a number of studies on sealing and the extent to which seal hunting practices involve cruelty to seals a question that has been fought over by governments, activists, non-governmental organizations and members of the public for many years. On reviewing the literature, the EFSA panel judged that it did not have enough good evidence for a quantitative analysis because little information was found that could be considered scientifically valid, robust and objective, and that had not been obtained without some form of bias, or there was a lack of independent verification. 59 Among the EFSA panel s general conclusions are that seals are sentient mammals that can experience pain, distress, fear and other forms of suffering 60 and that there is strong evidence that in practice effective killing killing using methods that avoid unnecessary suffering does not always occur. 61 The EFSA Report also expressly states that the ethical aspects of seal hunting are not part of the opinion as they were not included in the EFSA s remit. 62 The EU legislation itself referred directly to the EFSA s conclusions, picking up the EFSA Report s conclusion on the sentience of seals in the first paragraph of the preamble to the regulation banning seal products, which states: Seals are sentient beings that can experience pain, distress, fear and other forms of suffering. 63 Despite the EFSA panel s disclaimer that it was not considering the ethical aspects of seal hunting, and despite its presentation of its findings in the form of a risk assessment and a series of recommendations to reduce risk, neither the EFSA Report nor the way it was used in the EU legislation really fit with the usual nature or function of a risk assessment. It is true that the key finding that seals are sentient and experience suffering is enhanced in credibility and persuasiveness because it is backed up by evidence. This factual finding could be characterized as scientific, or perhaps, more accurately, as empirical (since it does not take specialized scientific training, equipment or techniques to observe that seals appear to experience pain and suffering). However, the full significance of the EFSA panel s factual determination about suffering is a function of the legal and policy context. The suffering of seals in the hunt matters because animal suffering is legally relevant under EU law, because it has been identified as a moral concern of the European public and because it connects to the concept of public morals under WTO law. The European legislation that invokes the EFSA Report for scientific support looks less like the regulation of a risk posed by a class of products than an expression in law of a moral objection to certain practices Ibid., at Ibid., at Ibid., at Ibid. 62 Ibid., at Council Regulation 1007/2009, supra note Howse and Langille, Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Values, 37 Yale Journal of International Law (2012) 367, at 368, arguing that [t]he EU seal products ban is in part aimed instrumentally at improving animal health and welfare, but it is also based on a level of protection for the animals in question that is grounded in the community s ethical beliefs about the nature of cruelty and the unacceptability of consumption behavior that is complicit with that cruelty.