Introduction:
With the outburst of population after the 1960’s, the demand for food has meteorically risen. The increase in number of mouths to feed has nearly tripled meat production in developing nations in the past 50 years.[1] With this increase in demand for food there has been a decline in the standards of animal welfare.
Lack of explicit rules on animal welfare are also to blame for poor animal welfare. This led many developing countries to view higher welfare standards as trade barriers that are protectionist in purpose.
But there has been a shift in this narrative. With an increasing number of animals being raised for international markets, and with a growng ability for people to hold the governments accountable, both policy makers and ordinary citizens are showing greater interest in how animals are treated. It is no longer sufficient for governments to be concerned for the welfare of animals within their own borders: animal welfare is quickly becoming an issue of international concern particularly since the majority of the world’s poor is economically dependent on their animals.[2]
Animal welfare is being viewed with more significance with each passing day. The blog will be a two part series with the first throwing light upon the existing legislation on animal welfare and the international community perceives it as a trade barrier. The second part will focus on the change in narrative of the international community to a more inclusive approach towards animal welfare.
Existing Provisions under the WTO Covered Agreements:
Scholars and animal welfare organizations have written extensively about the WTO’s negative impact on animal welfare legislation. Ever since the establishment of the WTO, animal welfare organizations have been sounding the alarm and arguing that the free trade rules focus almost entirely on ensuring that trade flows as smoothly as possible and leaving little room for protecting animals.[3]
Currently under the GATT, animals are protected under Article XX (b) which allows a member country to enact measures necessary for their protection. This provision is often seen as a barrier for international trade. For instance, in the US-Tuna case detailed below, the use of Article XX to give preference of animal welfare over free trade was challenged. Apart from this exception within the GATT, there is no international convention or treaty which provides for the welfare or regulates the acceptable treatment of animals.[4]
Domestic regulations on animal welfare matters are often seen as ‘technical regulations’ constituting ‘technical barriers to trade’ under the TBT Agreement. According to the TBT Agreement, “technical regulations” are “mandatory laws or provisions specifying the characteristics of products, the processes or production methods for creating products or the terminology, symbols, packaging, marking, or labeling requirements for products.[5] Thus, in order to be considered as barrier, a regulation must been unrealistic or unreasonable. Further, the procedures to verify compliance with those regulations could be also considered as barriers according to their nature.[6] Furthermore, Article 2.1 of the TBT Agreement provides for imported products to be treated “no less favorable” than those of the origin state. This phrase can be of assistance in ensuring that protectionist measures are not legitimized under the guise of protection of animal welfare.
US- Tuna Case
USA had imposed a ban on the import of tuna from countries, which did not protect the dolphins in the tuna fishing process. In order to catch tuna, dolphins were also caught in the nets of the fisherman, which had an adverse effect on their numbers.
The ban was challenged by Mexico in 1991 before a GATT Panel. Mexico contended that the ban acted as an unreasonable barrier to trade in the US as it treated Mexican products less favorably and allowed US to regulate the use of Mexico’s natural resources. The GATT panel held that the exceptions under Article XX must be interpreted narrowly so as to not undermine multilateral trade rules. The panel took a pro trade approach and analyzed each contention with respect to sustain free trade. The panel thus gave priority to free trade over environmental concerns.[7]
This laid the initial stance of the GATT favoring free trade over environmental concerns. But in US-Tuna II case in 2008, Mexico again challenged a USA legislation to the same effect. The Appellate Body came out with a report in 2012. This report held that the dolphin safe label was consistent with the TBT. Though the restrictions were held to be more restrictive than necessary, the US—Tuna dispute was the first to indicate that the WTO was not as hostile to animal protection as is often thought.[8]
The argument of Like products
Another example used by animal welfare groups relates to the WTO concept of “like” products. Non-discrimination between similar or “like” products is one of the WTO’s bedrock principles. As has been well-chronicled and lamented, the WTO Dispute Settlement Body’s interpretation of like products has completely ignored “processes and production methods” in the analysis.
For WTO purposes, this means an egg is an egg, whether it comes from a hen kept in a cramped battery cage or one allowed to forage freely in the yard, and no WTO member may discriminate between eggs produced in different countries. This interpretation impedes animal welfare regulations in production industries because countries often aim to improve animal welfare by prohibiting certain production methods.
A country will be hesitant to pass an industry-practice ban that applies only to domestically produced products because it may place domestic producers at a disadvantage against foreign producers that are able to produce the products more cheaply using the inhumane practice in question. However, also applying the ban to imported products will likely cause much handwringing among legislators because of the WTO’s perceived approach toward discrimination.[9]
Conclusion
Co-operation between States is at the very core of international law, which rests to a large degree on the consensus principle. To reach this consensus a balance needs to be struck between the parties to ensure that the exercise of one’s rights does not nullify the rights of the other. This consensus seemed distanced when the Animal Welfare issue came up.
As we will see in the second part of this post, the US- Shrimp Case and the EC- Seal case along with the change in the stance of numerous ongoing Free Trade Agreements, there is a strive towards achieving this balance between free flowing international trade and the welfare of animals.
Stay tuned to read the second part of this blog here!
This post has been authored by Adit Garg, 2nd year student at the West Bengal National University of Juridical Sciences.
[1]Statistical Yearbook of the Food and Agriculture Organization for the United Nations, Feeding the World, 126 (2009).
[2] Humane Society International, Animal Welfare, International Trade and Sustainable Development & Improving the Lives of Animals, Farmers and Communities, World Trade Organization Open Forum 2008: Trading into the Future, Geneva, Switzerland (2008) available at http://www.hsi.org/assets/pdfs/animal-welfare-international-trade-and-sustainable-development-hsi-submission-to-wto-final.pdf.
[3]Leesteffy Jenkins & Robert Stumberg, Animal Protection in a World Dominated by the World Trade Organization, in the State of the animals, 149 (Deborah J. Salem & Andrew N. Rowan eds., 2001).
[4]David S. Favre, An International Treaty for Animals, 18 Animal L. 237 (2012).
[5]Agreement on Technical Barriers to Trade, Annexure 1.1, Apr. 15 1994, 1868 U.N.T.S. 120.
[6]María Alejandra Calle-Cook, International Trade Law and emerging trade-related issues: The case of Animal Welfare Concerns, 2 EAFIT Journal of International Law 8, (2010).
[7]GATT, United States-Restrictions of Imports on Tuna, Report of the Panel (3 September 1991) (DS21/R – 39S/155).
[8]WTO, United States-Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (15 September 2011) WT/DS381/R.
[9] Andrew Laurie, Protecting Animals In International Trade: A Study Of e Recent Successes At the WTO And In Free Trade Agreements, 30 AM. U. INT’L L. REV. 431, (2015).
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