Modern history has come to expand the net of rights holders: slaves, women, indigenous people and children. Before their rights were ‘recognised’, various regulations concerned their protection as property. The rights of animals are also gaining recognition and jurisdictions are starting to move away from animals as property to animals as sentient beings whose welfare is important in a humane society. This two part howtoregulate article focuses on moving beyond traditional prevention of animal cruelty legislation to regulating animal welfare, recognising either animal rights, animal sentience or the requirement for humane treatment. This Part 1 provides an overview of animal welfare regulatory frameworks at the international, supra-national, national and state levels.
A. Supra-national regulatory framework and international organisations
1. There are no international legal instruments requiring states to regulate animal welfare based on a recognition of rights or of sentience. The closest, the United Nations Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), regulates the international trade of wild animals and requires that the wild animal is not on a prohibited list and that it will be transported in a manner that reduces injury, harm to health and cruel treatment. Our howtoregulate article “Feathers, Fur, Fins and Fronds: Regulations Against the Illegal Trade in Wild Fauna and Flora” provides additional details on CITES and reference regulation against illegal trade in wild animals. Animal health measures more broadly have become important to facilitate safe international trade of animals, animal products and products involving animal testing. Noting the international trade element, animal welfare is regulated through an economic lens, for example food safety by the World Trade Organization setting standards among its 164 Member States.
I. World Trade Organization (WTO)
2. The WTO is the only global international organisation dealing with the rules of trade between states. It is governed by the WTO agreements, negotiated and signed by the bulk of the world’s trading nations and ratified in their parliaments. The goal is to help producers of goods and services, exporters, and importers conduct their business. The Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) entered into force with the establishment of the WTO (1995) and concerns the application of food safety, and animal and plant health regulations. The SPS Agreement allows states to set their own standards, however, regulations must be based on science, and applied only to the extent necessary to protect human, animal or plant life or health. Such regulations should not arbitrarily or unjustifiably discriminate between states where identical or similar conditions prevail. Member States are encouraged to use international standards, guidelines and recommendations where they exist and may set higher standards based on appropriate assessment of risks so long as the approach is consistent, not arbitrary. The World Organisation for Animal Health is the WTO reference organisation for standards relating to animal health and zoonoses.
II. World Organisation for Animal Health (OIE – Office International des Epizooties)
3. The OIE is the intergovernmental organisation responsible for improving animal health worldwide. Following the need to fight animal diseases at global level, the OIE was created in 1924 by international Agreement and consists of 182 Member States, with regional and sub-regional offices on every continent. The OIE has developed two standard-setting codes (Terrestrial and Aquatic) and two manuals (Terrestrial and Aquatic) as the principle reference for WTO members. The Terrestrial Animal Health Code and the Aquatic Animal Health Code are voluntary normative instruments that respectively aim to assure the sanitary safety of international trade in terrestrial animals and aquatic animals, and their products. The codes traditionally addressed animal health and zoonoses, but they have expanded to cover animal welfare, animal production food safety, consistent with the OIE’s expanded mandate to improve animal health worldwide. The Manual of Diagnostic Tests and Vaccines for Terrestrial Animals and the Manual of Diagnostic Tests for Aquatic Animals provide a harmonised approach to disease diagnosis by describing internationally agreed laboratory diagnostic techniques.
4. The Veterinary Authorities of importing and exporting states are required to follow the health measures in the Terrestrial Code. Health measures include early detection, reporting and control agents that are pathogenic to animals or humans, and to prevent their transfer via international trade in animals and animal products, while avoiding unjustified sanitary barriers to trade. The regulations in Volume I of the Terrestrial Code cover measures about:
- animal disease diagnosis, surveillance and notification;
- applying risk analysis;
- quality of veterinary services;
- disease prevention and control;
- trade, import/export procedures and veterinary certification;
- veterinary public health; and
- animal welfare.
Animal welfare is:
“the physical and mental state of an animal in relation to the conditions in which it lives and dies.
An animal experiences good welfare if the animal is healthy, comfortable, well nourished, safe, is not suffering from unpleasant states such as pain, fear and distress, and is able to express behaviours that are important for its physical and mental state.
Good animal welfare requires disease prevention and appropriate veterinary care, shelter, management and nutrition, a stimulating and safe environment, humane handling and humane slaughter or killing. While animal welfare refers to the state of the animal, the treatment that an animal receives is covered by other terms such as animal care, animal husbandry, and humane treatment.”
Volume II lists the recommendations applicable to OIE Listed diseases and other diseases of importance to international trade across species (e.g. anthrax, blue tongue virus etc.) and specific to species (honey bee infestations, avian influenza viruses, African swine fever virus etc.).
5. Much like the Terrestrial Code, the Aquatic Code contains similar measures about:
- notification, OIE Listed diseases and surveillance for aquatic animals;
- applying risk analysis;
- quality of aquatic animal health services;
- disease prevention and control;
- trade, import/export procedures and health certification;
- antimicrobial use in aquatic animals;
- welfare of farmed fish, covering transport, welfare aspects of stunning and killing of farmed fish for human consumption and killing of farmed first for disease control purposes; and
- diseases of amphibians, crustaceans, fish, and molluscs.
6. Given the suspected origin of COVID-19, animal health issues have come into sharp focus and the OECD completed a useful, recent study on the OIE looking at how OIE international standards can be strengthened through monitoring mechanisms.
III. Organisation for Economic Development (OECD)
7. As an economic alliance of 35 Member States, the OECD works to promote international consistency in many areas and animal welfare standards in the testing, labelling and regulation of chemicals is one such area. At its Second High Level Meeting of the Chemicals Group, the welfare of laboratory animals was addressed:
“The welfare of laboratory animals is important; it will continue to be an important factor influencing the work in the OECD Chemicals Programme. The progress in OECD on the harmonisation of chemicals control, in particular the agreement on Mutual Acceptance of Data, by reducing duplicative testing, will do much to reduce the number of animals used in testing. Such testing cannot be eliminated at present, but every effort should be made to discover, develop and validate alternative testing systems.”
OECD Council Decision on the Mutual Acceptance of Data (MAD) in the Assessment of Chemicals seeks to harmonise chemical regulation among its members, including the OECD Guidelines for the Testing of Chemicals and OECD Principles of Good Laboratory Practice (GLP). The MAD criteria for non-clinical health and safety test study include:
- The study must have been conducted according to OECD Test Guidelines and OECD Principles of GLP;
- The study must have been conducted in a test facility which has been inspected by a national GLP compliance monitoring programme (Council Decision on Compliance with Principles of GLP); and
- The national GLP compliance monitoring programme must have undergone a successful evaluation by OECD.
If all three criteria are met, all OECD members as well as any adherents to MAD must accept the study data.
8. The OECD Guidelines for the Testing of Chemicals regulate the following areas:
- Physical Chemical Properties (Section 1);
- Effects on Biotic Systems (Section 2);
- Environmental Fate and Behaviour (Section 3);
- Health Effects (Section 4); and
- Other Test Guidelines (Section 5).
9. The OECD GLP defines good laboratory practice as “a quality system concerned with the organisational process and the conditions under which non-clinical health and environmental safety studies are planned, performed, monitored, recorded, archived and reported”1. The GLP regulates the:
- Test facility organisation and personnel, and their respective responsibilities;
- Quality assurance programme and the responsibilities of personnel therein;
- Apparatus, material and reagents;
- Test systems, including physical/chemical and biological;
- Test and reference items;
- Standard operating procedures;
- Reporting of study results; and
- Storage and retention of records and materials.
10. Interestingly, the above cited standard-setting documents do not define animal welfare although there are references in the GLP to humanely destroying animals that are not suitable for testing, treating illness and changing their bedding regularly. Nevertheless, the requirement is clear, analysis must be conducted before safety testing on animals to determine whether animal testing is the only means for determining safety, the longterm goal being to “diminish the use of animals for safety testing”.
IV. United Nations (UN)
(a) UN Committee on World Food Security (CFS)
11. The CFS is an international and intergovernmental platform for coordination of food security and nutrition for all. It reports to the UN General Assembly through the Economic and Social Council (ECOSOC) and to the UN Food and Agriculture Organisation (FAO) Conference and is funded by FAO, World Food Programme and the International Fund for Agricultural Development. In 2014 the CFS adopted the Principles for Responsible Investment in Agricultural and Food Systems, which states at Principle 8.ii that human health and safety are promoted through supporting animal health and welfare to sustainably increase productivity, product quality and safety. These Principles were also endorsed by the UN General Assembly who called for all states, business enterprises, farmers and community to promote, support and use the Principles. In 2016, the CFS agreed on a set of recommendations for sustainable agriculture development with a focus on livestock, which states that animal welfare must be improved in all livestock productions systems delivering on the Five Freedoms2 and OIE Codes.
(b) World Health Organisation (WHO)
12. The WHO are promoting a One Health approach to designing and implementing programmes, policies, legislation and research in which multiple sectors (such as public health, animal health, plant health and the environment) communicate and work together to achieve better public health outcomes. This multisectoral One Health approach seeks to join efforts of the International Health Regulations (see our article about International Health Regulations in relation to infectious disease regulation) and those of the OIE Performance of Veterinary Services by bringing public health and animal health actors together. Corrective measures are identified in the process to form a roadmap to improve the collaboration between the two sectors in the prevention, detection and response to zoonotic disease outbreaks and other health issues at the interface between humans and animals. A Tripartite Guide to Addressing Zoonotic Disease has been developed between the WHO, OIE and the FAO outlining tools for conducting a qualitative joint risk assessment for a national priority zoonoses, ongoing zoonotic disease event, or other health threat at the human-animal-environment interface.
(a) European Union
13. Article 13 of Title II of the Treaty on the Functioning of the European Union introduced the recognition that animals are sentient beings:
“In formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the EU countries relating in particular to religious rites, cultural traditions and regional heritage.”
Member State governments may adopt more stringent rules provided they are compatible with the provisions of the Treaty but legislation concerning the welfare conditions of farm animals lays down minimum standards.
14. Council Directive 98/58/EC concerns the protection of animals kept for farming purposes which concerns general rules for the protection of animals of all species kept for the production of food, wool, skin, fur or other farming purposes, including fish, reptile or amphibians. Requirements for animal welfare include:
Article 3: Member States shall make provision to ensure that the owners or keepers take all reasonable steps to ensure the welfare of animals under their care and to ensure that those animals are not caused any unnecessary pain, suffering or injury.
Paragraph 2 of the Annex: All animals kept in husbandry systems in which their welfare depends on frequent human attention shall be inspected at least once a day. Animals in other systems shall be inspected at intervals sufficient to avoid any suffering.
Paragraph 18 of the Annex: No other substance, with the exception of those given for therapeutic, or prophylactic purposes or for the purposes of zootechnical treatment must be administered to an animal unless it has been demonstrated by scientific studies of animal welfare or established experience that the effect of that substance is not detrimental to the health or welfare of the animal.
Paragraph 21 of the Annex: No animal shall be kept for farming purposes unless it can reasonably be expected, on the basis of its genotype or phenotype, that it can be kept without detrimental effect on its health or welfare.
15. Other EU regulation concerning animal welfare, includes:
- Council Directive 1999/74/EC laying down minimum standards for the protection of laying hens;
- Council Directive 2007/43/EC laying down minimum rules for the protection of chickens kept for meat production;
- Council Directive 2008/120/EC laying down minimum standards for the protection of pigs;
- Council Directive 2008/119/EC laying down minimum standards for the protection of calves;
- Council Regulation (EC) No 1/2005 on the protection of animals during transport; and
- Council Regulation (EC) No 1099/2009 on the protection of animals at the time of killing.
To enforce these regulations the European Commission conducts audits of the relevant Member States’ authority/ies, reviews the reports required to be submitted, investigates non-compliance reported by individuals or non-government organisations and may open an infringement procedure under Article 258 of the Treaty on the Functioning of the EU3.
16. As part of the EU’s Farm to Fork Strategy, the Commission is reviewing the above provisions on animal welfare, with the aim of creating a more sustainable food system in the EU. One interesting proposal is to create an animal welfare label to link on-farm sustainability efforts to consumer demand. The European Food Safety Authority website has a number of completed scientific assessments already and a fitness check will follow. This Eurogroup for Animals summary provides a useful overview of the Commission’s regulatory review process.
(b) Council fo Europe (CoE)
17. The CoE has five framework conventions concerning animal welfare:
- European Convention for the Protection of Animals kept for Farming Purposes;
- The Protocol of Amendment to the European Convention for the Protection of Animals Kept for Farming Purposes;
- European Convention for the Protection of Animals During International Transport;
- European Convention for the Protection of Animals for Slaughter;
- European Convention for the Protection of Pet Animals;
- European Convention for the Protection of Vertebrate Animals Used for Experimentation and other Scientific Purposes; and
- Protocol of Amendment to the European Convention for the Protection of Vertebrate Animals used for Experimental and other Scientific Purposes.
and two that concern wildlife as part of the environment:
- Convention on the Conservation of European Wildlife and Natural Habitats; and
- Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment.
Once these conventions have been signed and ratified, Member States are to transpose into national law, and enforce the regulations therein. While CoE obligations are more moral than legal, the EU has also made regulations on the conclusion of CoE conventions and those are legally binding on EU Member States.
B. International non-government organisations and networks
This howtoregulate article looks exceptionally at campaigns by international non-government organisations and networks on the basis that some have gained the support of several jurisdictions (international, regional and national) keen to strengthen their animal welfare regulatory frameworks.
I. Universal Declaration of Animal Welfare (UDAW)
1. The World Animal Protection (WAP – formerly World Society for the Protection of Animals) spearheaded a campaign to develop a UDAW in 2000. Much like the Universal Declaration of Human Rights (UDHR) came to be endorsed by the UN General Assembly and its Member States, the WAP advocates for UN Member States to recognise animal sentience and that animal welfare is integral to the achievement of the Sustainable Development Goals. It is hoped that adoption of a UDAW will promote and enable the spread of animal protection legislation and initiatives, in much the same way that the UDHR inspired specific human rights legislation in various jurisdictions. The UDAW has been supported, in principle by the OIE (Resolutionof International Committee of OIE May 2007), British Veterinarian Association, American Veterinary Association and other regional veterinarian associations4. The 934th Council of the EU meeting on agriculture and fisheries (23 March 2009) discussed the proposal for UDAW and agreed that “animal welfare is an issue of common concern and importance”. The EU Council encouraged the EU Commission “tosupport and initiate further international initiatives to raise awareness and create a greater consensus on animal welfare” and invited EU Member States and the Commission “to support, in principle, the UDAW initiative in the relevant international fora”. This map outlines the various jurisdictions that have either pledged full support for the proposed UDAW or partial support.
2. UDAW calls for:
Recognition that animals are living, sentient beings and therefore deserve due consideration and respect;
Recognition that animal welfare includes animal health and encompasses both the physical and psychological state of the animal and that good practices in animal welfare can have major benefits for humans and the environment;
Recognition that humans inhabit this planet with other species and other forms of life and that all forms of life co-exist within an interdependent ecosystem;
Recognition of the importance of the ongoing work of the OIE in setting global standards for animal welfare and that member states should adopt all necessary measures to give effect to the principles of UDAW, including the implementation of these standards;
Acknowledgment that many states already have a system of legal protection for animals, both domestic and wild and that the continued effectiveness of these systems must be ensured, with the development of better and more comprehensive animal welfare provisions;
Awareness that the Five Freedoms (freedom from hunger, thirst and malnutrition; freedom from fear and distress; freedom from physical and thermal discomfort; freedom from pain, injury and disease; and freedom to express normal patterns of behaviour) and the Three Rs (reduction in numbers of animals, refinement of experimental methods and replacement of animals with non-animal techniques) provide valuable guidance for the use of animals; and
3. The principles of the declaration are:
The welfare of animals shall be a common objective for all states and all appropriate steps shall be taken by member states to prevent cruelty to animals and to reduce their suffering.
The policies, legislation and standards of animal welfare attained by each state shall be promoted, recognised and observed by improved measures, nationally and internationally. Each member state should care for and treat animals in a humane and sustainable manner in accordance with the principles of the Declaration.
All appropriate steps shall be taken by states to prevent cruelty to animals and to reduce their suffering.
Appropriate policies, legislation and standards on the welfare of animals will be further developed and elaborated, such as those governing the use and management of farm animals, companion animals, animals in scientific research, draught animals, wildlife animals, and animals in recreation.6
II. Advocating for a UN Convention on Animal Health and Protection (UNCAHP)
4. The Global Animal Law (GAL) is an independent authority for the health and protection of animals in the law. The work of GAL is based on four pillars: Prevention, Legislation, Enforcement and Education. GAL projects include:
a GAL database, being the only comprehensive and continuously updated database of all animal welfare legislation worldwide;
a GAL matrix containing proposals toward a better world for animals through law;
a GAL Friendly Index, which aims to record, analyse and compare the animal-friendliness of 193 countries on a jurisprudentially unobjectionable basis;
Animal Guides: Dog Responder, with future Responders for cats, horses and farm animals, which provide a quick and easy overview of the legal, ethological and veterinary situation of dogs/cats/horses/farm animals in their everyday life with humans; and
advocating for a Convention on Animal Health and Protection (UNCAHP) to be adopted by the UN.
GAL calls for the adoption of a convention on animal protection that:
anchors animal protection in the UN as a central condition to achieve better welfare for all animals and their health worldwide; and
all interaction with healthy animals should be carried out with dignity and recognition of their intrinsic value.
5. GAL drafted the UNCAHP to cover animal protection in its widest sense, including animal welfare and animal health. The draft considers the local and national conditions, their implications and allows for cultural differences as far as animal welfare is considered. GAL advocates for the UN General Assembly to adopt the UNCAHP and seeks the support of the foreign affairs representative of Member States to support UNCAPHP at the UN. The UNCAHP consists of four parts (Preamble, Objective, Principles and Implementation) and 16 Articles, covering:
- basic principles of responsibility, care and assistance;
- guiding principles of the five freedoms and three Rs (see above paragraphs 1-3 of UDAW);
- fundamental principles of sentience, intrinsic value and dignity;
- non-cruelty and good treatment;
- general measures for animal health, welfare and protection;
- cooperation between party signatures;
- incentive measures;
- public education and awareness;
- secretariat and conference of the parties; and
- national reports.
III. Model Animal Welfare Act
6. The World Animal Net (WAN) was established in 1997 to improve communication and coordination among the world’s animal protection groups. It is the world’s largest network of animal protection societies with over 3,000 affiliates in more than 100 countries and special consultative status at the UN.7 The WAN has developed a highly recommended regulatory reference in its Model Animal Welfare Act (Model Law), which comprises three detailed parts:
- Part 1: Guiding Principles for Modern Animal Welfare Legislation – A Broad Overview;
- Part 2: Proposal for the Wording of a New Animal Welfare Act; and
- Part 3: Explanatory Notes.
This Model Law is designed as a basic template and guidance document for those interested in enacting new legislation or improving existing animal protection legislation. The drafters state they used an extensive comparative law exercise, taking into account ‘best practice’ in the field, seeking to provide the best possible structures, systems and provisions to protect the welfare of animals.8 The drafters recommend that jurisdictions just starting to establish animal welfare requirements should adopt a strategic approach, implementing provisions of the Model Act gradually over time. They advise jurisdictions of the importance of working progressively towards the best possible protection for the welfare of their respective animal population towards the eventual reduction and replacement of any uses of animals which compromise their welfare.
7. The Model Law functions as an ‘umbrella’ or ‘framework’ law, see Model B of howtoregulate article about regulatory architecture. In jurisdictions with a federal system the drafters recommend the introduction of a national animal welfare, over state or regional laws because it helps harmonise regulatory implementation following adaptations. Elements of both common law and civil law are represented in the Model Law to ensure a comprehensive approach to animal welfare legislation covering: prevention of animal cruelty and abuse, establishing the responsibility and the principle of care towards the animal, promoting the education and sensitisation of the populations, as well as offering effective solutions for efficient law enforcement. The Model Law was created in order to govern people’s behaviour and allow for other civil or religious legal systems to take a different form such as ‘codes’ or ‘edicts’. Ideally, the recognition of animal sentience and the obligation to respect and protect animals should be firmly embedded within the juridical system of every country, starting with the constitution. The Model Law proposes a constitutional provision on animal welfare and protection which, at the minimum, should include:
- Recognition that animals are sentient beings with an intrinsic value;
- An explicit commitment to prioritise animal welfare; and
- In federal systems of government, recognition in the constitution that animal welfare legislation is a matter of federal legislative power.
It is highly recommended that the constitution or at least a statute requires the:
government and citizens at all times to consider animals with respects, and treat them with compassion, safeguarding their welfare and protecting their intrinsic value;
government to introduce laws and enforcement structures so as to afford animals the highest level of care and protection; and
government to develop and support humane education programmes to encourage respect and compassion for people, animals and the environment, and the recognition of the interdependence of all living beings.
8. The scope of the Model Law should be the regulation of all areas where humans have the potential to affect the lives or welfare of animals, ensuring their humane treatment and care, and include all major categories of animal issues:
- Companion animals (pets) – including stray dog and cat management;
- Animals kept for farming purposes – including fish farming – as well as animal transport and killing/slaughter;
- Animals used for experimentation – including science, research and testing;
- Wildlife – including ‘pest’ control, and animals in zoos/aquaria;
- Animals used for work; and
- Animals used for sports, leisure or entertainment.
The Model Law itself is fairly straightforward and succinctly captures the requirements and enforcement in 6 Chapters and 45 Sections. The broad lines of the chapters cover:
General Provisions: prohibiting cruelty to animals, killing of animals (except as provided for by the Model Act), passing on doomed animals and the obligation to grant first aid;
Keeping of Animals/Care of Animals: divided into General Regulations (A. principle of keeping animals, qualifications of animal keeper etc.) and Special Regulations (B. animal breeding, sale and trade of animals, stray animals, human killing etc.);
Specific Categories of Animal Use;
Implementation and Enforcement Provisions: authorities, authorisations, empowerments, Animal Welfare Ombudsman, animal shelters, veterinarians, animal welfare research etc.); and
Penal and Final/Concluding Provisions.
C. National and state regulations
As there is a good reference Model Law developed by the WAN above (Part C, paragraphs 6-8) this Part C will focus on reference regulation described as simple, medium complexity and complex regulatory frameworks. Noting that the drafters of the Model Law recommend a progressive approach to animal welfare law reform, examples of jurisdictions arranged by complexity, is useful for regulators of varying capacities, resources, time constraints and socio-political realities.
I. Constitutional recognition of animal welfare
1. The Model Law recommends that recognition of animal sentience and the obligation to respect and protect animals should be firmly embedded within the juridical system, starting with the constitution. The Model Law proposes a constitutional provision on animal welfare and protection which, at the minimum, should include: (a) recognition that animals are sentient beings with an intrinsic value; (b) an explicit commitment to prioritise animal welfare; and (c) in federal systems of government, recognition in the constitution that animal welfare legislation is a matter of federal legislative power.
2. India’s 1950 Constitution requires the state to “endeavour to organise … animal husbandry on modern and scientific lines” (Article 48) and to prohibit the slaughter of cattle and dairy animals for religious reasons. In 1974, Article 51A(g) was added, declaring it the duty of every citizen of India “to have compassion for living creatures”.
3. Switzerland’s 1994 referendum modified the federal constitution to change the status of animals from “things” to sentient creatures. By 1999, the Swiss Constitution had established the mandate for federal legislation in all areas of farm animal welfare. The following articles of the Swiss Constitution concern animal welfare:
“Article 80 Protection of animals
1. The Confederation shall legislate on the protection of animals.
2. It shall in particular regulate:
a. the keeping and care of animals;
b. experiments on animals and procedures carried out on living animals;
c. the use of animals;
d. the import of animals and animal products;
e. the trade in animals and the transport of animals;
f. the slaughter of animals.
The enforcement of the regulations shall be the responsibility of the Cantons, except where the law reserves this to the Confederation.
Article 120 Non-human gene technology
1. Human beings and their environment shall be protected against the misuse of gene technology.
2. The Confederation shall legislate on the use of reproductive and genetic material from animals, plants and other organisms. In doing so, it shall take account of the dignity of living beings as well as the safety of human beings, animals and the environment, and shall protect the genetic diversity of animal and plant species.”
4. In 2002, Germany added Article 20 to its constitution (Grundgesetz für die Bundesrepublik Deutschland) which is interpreted as enshrining the protection of animals as a major state objective, binding on all state actors:
“Article 20, a):
[Protection of the natural foundations of life and animals]
Mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.
Within the German constitutional law system, the inclusion of animals in this provision means that the Constitutional Court must balance the protection of animals against other constitutionally enshrined state objectives.”9
5. Egypt adopted in 2014 Article 45 of the Constitution:
“The State shall protect its seas, shores, lakes, waterways and natural protectorates.
Trespassing, polluting or misusing any of them is prohibited. Every citizen is guaranteed the right of enjoying them. The State shall protect and develop the green space in the urban areas; preserve plant, animal and fish resources and protect those under the threat of extinction or danger; guarantee humane treatment of animals, all according to the law.”
6. Austria also recognises animal welfare in its federal and state constitution. The Federal Constitutional Law on Sustainability and Animal Welfare (BGBL. I NR. 111/2013) states “[t]he Republic of Austria (federal, provincial and municipal) is committed to animal welfare.” (Preamble §2). Article 9 of the Constitution of the State of Salzburg states “respect for and protection of animals as fellow creatures of man out of his responsibility towards living beings”.
II. Less complex references of animal welfare regulations
7. Tanzania’s Animal Welfare Act, 2008 is a good example of a straightforward regulation consisting of 64 sections covering many of the principles of the Model Law, including:
recognising the sentience of animals;
establishing the Animal Welfare Advisory Council, with empowerment covering monitoring and mitigation of animal abuse, promoting animal welfare awareness and other related matters;
the scope is quite progressive covering all animals, vertebrates and invertebrates other than man, excluding wild animals which are regulated under the Wildlife Conservation Act, 2013;
addressed the main areas of animal use (farm animals, companion animals, transportation of animals, care of injured animals, slaughtering of animals, use of an animal for working and entertainment, animal experiments);
provision for the appointment of animal welfare inspectors to enforce the law; and
power to the authority to make regulations.
8. The 2017 modification of Costa Rica’s Law 7451 of Animal Welfare focussed on reforming the penalties for animal cruelty such as dog and rooster fights, including the breeding or train of animals to increase dangerousness (Article 15). The updated law established up to two years imprisonment for anyone who causes the death of a domestic or domesticated animal; and up to one year in prison for causing harm to animals, zoophilia and vivisection. Law 7451 recognises the Five Freedoms (Article 3) as the basic conditions for the welfare of animals and Article 1 protections provide that an awareness of animal cruelty and mistreatment injures human dignity, and that compassion for suffering animals reflects human dignity. Wild animals should should enjoy their environment, freedom and have the ability to reproduce, and any deprivation of liberty for educational, experimental or commercial purposes should produce the minimum possible damage in accordance with Law 7451. The main areas of animal use are regulated:
treatment of productive animals (Article 5), where their environment is modified, in addition to seeking productivity, it must take into account the welfare and conditions appropriate for the animal, which extends to transport and slaughter;
treatment of working animals (Article 6) should have the necessary rest and restorative diet according to the work they perform;
treatment of companion animals must guarantee basic vital conditions and appropriate handling according to good safety practices, to avoid risks and damage to integrity, public health and veterinary public health (Article 7);
treatment of exhibition animals (Article 8);
treatment of animals used in sport or public shows (Article 9); and
Chapter III concerns animal experiments and is consistent with the OECD’s guidelines above at Part A, paragraph Y.
III. Animal welfare reference regulation of medium complexity
9. While Malaysia’s Animal Welfare Act 2015 does not recognise explicitly animal sentience, the Act recognises that animals feel pain and can suffer; acts or omissions causing pain or suffering are prohibited (Section 24). The Act outlines the administration for a licensing framework for “activities involving animals as specified in the Schedule” (Section 15), which consists of 13 activities:
1. Animal boarding
8. Quarantine of animals
2. Animal riding and spelling
9. Animal training
3. Performing animal
10. Captivity of live animal for sale activities
4. Breeding of animals
11. Slaughtering of animals
5. Research, testing and teaching on animals
12. Animal disposing
6. Animal rescue and rehabilitation
13. Strays controlling by any individual, organisation or body corporate
7. Activities relating to animal pound and animal shelters
10. Licences may be suspended or revoked where the licensee or any employee of the licensee has been convicted of an offence under the Act, for any breaches of licence conditions and where the welfare of an animal would be under threat if the licence remained in force (Section 21). Licensees must take reasonable steps to ensure that the needs of an animal are fulfilled and the Act specifies the Five Freedoms as needs (Section 24). Failure to comply with the duties at Section 24(1), on conviction, results in either a fine (between 15,000-75,000 ringgit or ~ US$3,710-18,550) or imprisonment of not more than two years or both [Section 24(3)]. Welfare officers oversee enforcement of licence conditions and Part VII lists general empowerments of investigation; search and seizure without a warrant; to enter premises; stop, search and seize conveyance; seal premises or conveyance; and seek court orders to detain animals, carcass etc. Animal welfare officers also have broad powers in relation to animals in distress, including removal, possession to take the animal to a vet or other premises for care, destruction in situations of suffering where there is no reasonable alternative and seek court orders for licensee to pay any cost and expenses in carrying the powers under Section 34. Part VIII outlines ancillary powers of the court to double the penalty for persons guilty of a second or subsequent offence under the Act. Part IX regulates offences committed by body corporates, and provides that the “chief executive officer, director, manager, secretary or other similar officer of the body corporate or was purporting to act in any such capacity” may be charged severally or jointly in the same proceedings with the body corporate.
11. The Animal Protection Act (enforcement date 25 March 2019) of South Korea is a comprehensive regulation that also does not recognise animal sentience explicitly. It enshrines in law the Five Freedoms (Article 3) and Article 1 provides:
“The purpose of this Act is to prescribe matters necessary to prevent animal abuse and to properly protect and manage animals, and thus contribute to protecting the lives of animals and enhancing their safety and welfare, as well as developing national ethos, such as respect for their life, and facilitating a harmonious coexistence between humans and animals through creating a sound and responsible raising culture.”
12. Animal is defined as a vertebrate with developed nervous systems through which they could feel pain, including mammals, birds and animals prescribed by Presidential Decree, among reptiles, amphibia and fish, after discussion between the head of a relevant central administrative agency and the Minister of Agriculture, Food and Rural Affairs. It provides clear and detailed definitions of cruel acts towards animals (Article 8) and prohibits posting on the internet a photograph or video footage of any act prescribed in Article 8(1) to (3) [Article 8(5)]. The Act’s enforcement measures include officials to carry out inspections (Article 39), breach of anti-cruelty provisions in Article 8(1) to (3) is punishable with imprisonment for up to two year or a fine of up to 20 million won (~US$18 thousand). Chapter V regulates businesses that deal with animals and require specific businesses to register (Articles 32 and 33), observe the guidelines prescribed by Ordinances of the state authority (Article 36), to complete annual training (Article 37) and Article 38-2 requires the relevant municipal authority to inspect such animal businesses at least once a year. Other interesting animal welfare measures include:
Article 4(1): requires the state to formulate and implement a comprehensive plan fro the welfare of animals every five years for protection and management.
Article 29: Korean farms may gain a secondary certificate as an ‘animal welfare farm’ if they allow animals to live “an ordinary life while maintaining their natural behaviour”. This certificate allows these farms access to government funds for improving facilities as well as counselling and education about environmental and animal welfare improvement. This measure incentivises animal farms towards better animal welfare practices.
Article 41-2: monetary rewards for persons who report or file a complaint against an owner of an animal who has failed to register an animal subject to registration, or failed to affix an identification tag, or who has failed to take safety measures or collect excreta.
Article 45: the state authority shall collect, research and analyse information and data each year on the proscribed matters listed eg. actual status of the protection and welfare of animals, matters regarding animal care centres etc.
13. South Korea’s Wildlife Protection and Management Act aims to prevent the extinction of wildlife. Article 8 prohibits killing wild animals by cruel methods such as the use of poison, beating or burning alive; causing pain or inflicting wounds after capturing animals; and collecting or installing any device in the body of wild animals to collect blood, gallbladder, internal organs or part of the living body of wild animals. Cruel methods of capture such as snares, trap and pitfalls are prohibited under Article 14.
IV. Complex animal welfare reference regulation
14. Australia animal welfare is not a federal power because within its constitutionally defined federal structure, animal welfare is a subject regulated at the state level and so the seven states10 each have their own animal welfare regulation. As trade and international agreements are a federal power, federal regulationcovers the welfare of animals involved in the live animal export trade and animals processed at export-registered slaughter establishments. The Australian Animal Welfare Strategy (AAWS) is a framework for harmonisation that establishes a coordinating vision, defines its purpose and scope and details particular goals. This framework also led to the establishment of AAWS advisory and working groups dedicated to different animal sectors, as well as a national implementation plan that contains procedures for coordination and reporting on the strategy.
15. Australia has also developed a comprehensive voluntary code for Australia’s livestock industries, regulating animal welfare of livestock animals, the Model Codes of Practice for the Welfare of Animals. The Codes cover the husbandry of livestock species and prescribe standards for the following:
- Basic welfare needs (including water, air, food, precautions against drought, protection from climatic extremes and predation);
- Intensive stocking systems;
- Handling, mustering and yarding;
- Management practices;
- Feral stock control; and
- Humane destruction.
16. These Codes are under review and will be converted into Australian Animal Welfare Standards and Guidelines (AAWSG). Standards of the AAWSG are legal requirements for livestock welfare and provide the basis for developing and implementing consistent legislation and enforcement across Australia. The guidelines are recommended practices to achieve desirable livestock welfare outcomes and non-compliance of one or more of the guidelines will not constitute an offence. The following specie-specific or subject-related AAWSG can be found at these links:
Animal welfare scrutiny in Australia is quite high, particularly around the issue of live animal export. The Australian Meat and Livestock Industry Act 1997 requires a report on the carriage of livestock, including any mortalities, on any sea voyage to a port outside of Australia to be tabled in each House of Parliament every six months (Section 57AA). This requirement ensures strict parliamentary oversight of animal welfare in the live export trade, in line with public expectations.
17. The states of Northern Territory (Animal Protection Act 2018), commencement date begins once the subordinate regulations are complete, and Australian Capital Territory (Animal Welfare Act 1992) have recently concluded modernising their respective animal welfare regulation. Soon the state of Victoria will have a draft Animal Welfare Bill, having recently completing a public consultation process in December 2020. Both the Northern Territory and the Australian Capital Territory Acts cover many of the principles of the Model Law. For example recognising animal sentience (physical and mental wellbeing), defines animal welfare referencing the Five Freedoms and broad definition of animal to include all vertebrates, fish, crustaceans and cephalopods. Interesting initiatives in the new regulatory requirements of the Northern Territory Act include:
The legal responsibility of drivers to appropriately restrain dogs riding on the tray or back of motor vehicles while travelling on public roads.
Where racing greyhounds are kept, it is now an offence to keep other animals on the premises that may be used for blooding greyhounds. This includes rabbits and possums.
Individual scientific users of animals for scientific purposes need to be registered, rather than the current practice of only licensing premises.
Accredited animal ethics committees will have increased oversight for research projects they approve, and it will be an offence to contravene a condition of a project approval granted by a committee.
Regulations are the tool used to prescribe and enforce codes of practice and standards relevant to animal welfare.
Under controlled circumstances, authorised officers have the power to enter land surrounding a building, without a warrant or written consent from the occupier, to check on the condition of animals at risk. Prior to an entry authorised officers must first take reasonable steps to try to contact the occupier.
Authorised officers have the power to enter premises where a registered person is keeping or using animals for scientific purposes, or where those premises are used for greyhound racing or related purposes, without the occupier’s consent or a warrant provided that entry is undertaken at a reasonable time.
A person convicted of three animal cruelty or related offences within a five year period will automatically be banned from being in control of an animal for five years.
The maximum term of imprisonment under the new Act increases from two to five years and the maximum fine will increase from 200 penalty units (currently AU$31,400, ~US$24,850) to 500 penalty units (AU$78,500 ~US$62,130). Note that one penalty unit currently equals AU$157, ~US$124.11
18. The amended Australian Capital Territory Act, includes regulations that:
set out a high-level framework for regulating pet businesses, and specifically pet shops and boarding kennels, to assure animal welfare outcomes. This provides the ability for the Animal Welfare Authority to impose conditions on a pet business licence. These conditions could restrict things such as the source and sale of certain types of animals, for example only dogs or cats sourced from shelters, pounds or foster organisations.
improve the regulatory framework for the Animal Welfare Authority so that:
a. the Authority can impose an interim prohibition order on a person owning or caring for animals of up to six months where there are serious concerns for the welfare of an animal or animals. This will be an appealable decision;
b. the Authority can seize, retain and/or sell or re-home an animal where appropriate, similar to powers under the Domestic Animals Act 2000; and
c. the Authority can impound an animal at premises other than a Government pound (for example, keeping seized puppies with an animal rescue organisation).
introduce a new offence category for minor duty-of-care or cruelty offences where warnings and fines can be issued where appropriate (for example, where a person does not leave out water for their dog or kicks a dog in anger). The existing serious offences that attract significant financial and court penalties will remain and still be available.
make a number of amendments to introduce new, or amend current, offences in the Act, including:
a. requiring a person to report the injury of an animal that is a mammal within 2 hours, rather than the previous 24 hours in the Act in section 10 (for example, where a car collides with a kangaroo or a dog and the animal needs urgent veterinary treatment). Existing duty of care obligations remain for a person to take reasonable steps to alleviate pain and/or suffering for all animals, including non-mammals. For example, a person who hits a bird with their car and the bird is injured is required to take reasonable steps to alleviate pain and/or suffering;
b. introducing provisions that expressly address dog fighting and allow for effective enforcement of dog fighting offences; and
c. clarify provisions around violent animal activities and ensure the prohibition of pig-dogging and other similar activities where an animal is used to intentionally injure and/or kill another animal, or where live baiting takes place, are captured. This will not prevent hunting activities more generally, the owning of hunting dogs or participation in accredited dog sporting activities.
increase maximum court imposed penalties for cruelty and aggravated cruelty offences.
expressly make it an offence for a person to leave an animal in a hot car or in other circumstances where a dog is in serious danger, and providing appropriate provision for an authorised officer or person to break into a car to rescue an animal only in reasonable and exceptional circumstances where all reasonable steps have been taken by that person and the animal’s life is in danger.
This article was written by Valerie Thomas, on behalf of the Regulatory Institute, Brussels and Lisbon. Ms Mayra Quijano provided research assistance for Spanish-speaking jurisdictions.
1 At 2.1 of the OECD Principles on Good Laboratory Practice (as revised 1997) ENV/MC/CHEM(98)17, p. 14,http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=env/mc/chem(98)17&doclanguage=en.
2 Originally developed in 1965 following UK government investigation, led by Professor Roger Brambell, into the welfare of intensively farmed animals. The Brambell Report stated “an animal should at least have sufficient freedom of movement to be able without difficulty, to turn around, groom itself, get up, lie down and stretch its limbs. From this the five freedoms became: 1) freedom from hunger or thirst, 2) freedom from discomfort, 3) freedom from pain, injury or disease, 4) freedom to express (most) normal behaviour, and 5) freedom from fear and distress. These five freedoms have been endorsed by the OIE and are reflected in its Codes. Information summarised from the Wikipedia entry for “Five Freedoms”, https://en.wikipedia.org/wiki/Five_freedoms.
3 Simonin D. & Gavinelli A., “The European Union legislation on animal welfare: state of play, enforcement and future activities” [PDF file], In: Hild S. & Schweitzer L. (Eds), Animal Welfare: From Science to Law, 2019, pp.59-70, https://www.fondation-droit-animal.org/proceedings-aw/the-european-union-legislation-on-animal-welfare/.
4 Gibson, M., “The Universal Declaration of Animal Welfare”  DeakinLawRw 22; (2011) 16(2) Deakin Law Review p. 543, http://www5.austlii.edu.au/au/journals/DeakinLawRw/2011/22.html
5 Ibid. p. 559 and https://en.wikipedia.org/wiki/Universal_Declaration_on_Animal_Welfare.
9 Food and Agriculture Organisation, “Legislative and regulatory options for animal welfare”, p. 28, http://www.fao.org/3/i1907e/i1907e00.pdf.
- Animal Welfare Act 2002, Western Australia last amendment 2019;
- Animal Welfare Act 1985, South Australia last amendment 2017;
- Animal Protection Act 2018, Northern Territory expected commencement date in 2021, currently in force is the Animal Welfare Act 1999.
- Animal Care and Protection Act 2001, Queensland last amendment 2016;
- Prevention of Cruelty to Animals Act 1979, New South Wales last amendment 2020 and associated Codes of Practice;
- Animal Welfare Act 1992, Australian Capital Territory last amendments 2020; and
- Prevention of Cruelty to Animals 1986, Victoria, consultation is underway to modernise animal welfare regulation through the development of a dedicated animal welfare Act.
11 Fact Sheet about the new Animal Protection Act 2018, https://industry.nt.gov.au/__data/assets/pdf_file/0007/592108/Animal-Protection-Act-Factsheet.pdf .