¹ United Kingdom, House of Commons, Parliamentary Debates, vol 528, col 499 (19 May 2011) (Bob Russell), online: <http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110519/debtext/110519-0001.htm#11051950000005>.

² For a profile of Paul Watson, leader of the environmental organization Sea Shepherd, see Katchadourian, Raffi, “Neptune’s Navy,” The New Yorker (5 November 2007) at 58.AMBIGUOUS 17715512,17323512Google Scholar Sea Shepherd’s website has a page devoted to “Laws and Charters,” where it announces that “Sea Shepherd cooperates fully with all international law enforcement agencies and its enforcement activities complying [sic] with standard practices of law and policing enforcement.” See Sea Shepherd, online <http://www.seashepherd.org/who-we-are/laws-and-charters.html>.

³ Lindon, Jared, “Culture Clash Over Proposed Shark-Fin Ban,” National Post (14 June 2011), online: <http://news.nationalpost.com/2011/06/14/culture-clash-over-proposed-shark-fin-ban/>.Google Scholar

⁴ See, eg, Fitzgerald, Peter L, “’Morality’ May Not Be Enough to Justify the EU Seal Products Ban: Animal Welfare Meets International Trade Law” (2011) 14:2 J Int’l Wildlife L & Pol’y 85 at 96 Google Scholar, observing that “animal welfare measures are primarily the province of domestic law and typically reflect local values and customs rather than a broad international consensus.”

⁵ It seems appropriate to acknowledge at the outset the difficulties of terminology in this area, in particular, with the centrally important word “animal.” Some prefer to use “nonhuman animal,” to stress the biological fact that we humans are animals too and to question the ideological view that sets us on a different plane from all of the rest of them. While I have some sympathy for this perspective, such encapsulations of argument in vocabulary tend to make the argument less persuasive to all but the already converted, and so I have retained the more common usage. A difficulty of imprecision is raised by the compendiousness of the word “animal,” referring as it does to so many and such different creatures, from flea to elephant, from oyster to chimpanzee. Jacques Derrida has called attention to the dynamic of power andjustice implicated by the naming of animals as a category, asserting that we do not have the right, confronted with the “heterogeneous multiplicity of the living,” to name “animal in general.” Derrida, James, The Animal That Therefore I Am, edited by Mallet, Marie-Louise, translated by Wills, David (New York: Fordham University Press, 2008) at 31.Google Scholar

⁶ Johnston, Douglas, The Historical Foundations of World Order: The Tower and the Arena (Leiden: Martinus Nijhoff, 2008) at 4.CrossRefGoogle Scholar

⁷ Draeger, Amy B, “More Than Property: An Argument for Adoption of the Universal Declaration of Animal Welfare” (2007) 12 Drake J Agric L 277 at 297.Google Scholar

⁸ Johnston, supra note 6 at 131.

⁹ Bowman, Michael, Davies, Peter, and Redgwell, Catherine, Lyster’s International Wildlife Law, 2nd edition (Cambridge: Cambridge University Press, 2010) at 680 CrossRefGoogle Scholar. Statute of the International Court of Justice, 26 June 1945, Can TS 1945 No 7 [ICJ Statute].

¹⁰ Johnston, supra note 6 at 131.

¹¹ Tasioulas, John, “International Law and the Limits of Fairness” (2002) 13 EJIL 993 at 1005.CrossRefGoogle Scholar

¹² Brunnée, Jutta and Toope, Stephen, Legitimacy and Legality in International Law: An Interactional Account (Cambridge: Cambridge University Press, 2010) at 21.CrossRefGoogle Scholar

¹³ Ibid.

¹⁴ Bowman, Davies, and Redgwell, supra note 9 at 698.

¹⁵ Brunnée and Toope, supra note 12 at 79.

¹⁶ Koran 6:38, cited in Eddine Sari Ali, Raoutsi Hadj, “Islam,” in Council of Europe, ed, Ethical Eye: Animal Welfare (Brussels, Belgium: Council of Europe Publishing, 2006) 145 at 145.Google Scholar

¹⁷ Ibid.

¹⁸ Beston, Henry, The Outermost House (New York: Owl Books, 1992; first published 1928).Google Scholar

¹⁹ Ibid at 25 [emphasis added].

²⁰ The literature on this debate is extensive. A useful recent overview is Francione, Gary L and Garner, Robert, The Animal Rights Debate: Abolition or Regulation? (New York: Columbia University Press, 2010).Google Scholar

²¹ Beston, supra note 18 at 24.

²² Donaldson, Sue and Kymlicka, Will, in their recent book Zoopolis (Oxford: Oxford University Press, 2011)Google Scholar, apply the model of citizenship to human-animal relationships (and they too seek to overcome the shortcomings of the “rights versus welfare” dichotomy). Their approach has commonalities with the idea of animal nations, taking the nation as the equivalent of the citizen at the level of international law. It might be useful to think of human beings as having relationships both with individual animals, as “citizens,” and with collectivities of animals, the animal nations — with issues ofjustice implicated in both cases.

²³ Brownlie, Ian, Principles of Public International Law, 7th edition (Oxford: Oxford University Press, 2008) at 57–58, 65, ch 25.Google Scholar

²⁴ See discussion of the Amsterdam Protocol, infra note 159.

²⁵ Koskenniemi, Martti, The Gentle Civilizer of Nations (Cambridge: Cambridge University Press, 2002) at 71.Google Scholar

²⁶ Fuller, Lon, The Morality of Law, revised edition (New Haven, CT: Yale University Press, 1969) at 4, 96.Google Scholar

²⁷ Brunnée and Toope, supra note 12 at 56.

²⁸ Ibid at 13.

²⁹ Ibid at 7; Schiff Berman, Paul, “Seeing beyond the Limits of International Law” (2006) 84 Tex L Rev 1265 at 1268–70, 1280–95.Google Scholar

³⁰ Berman, supra note 29 at 1284.

³¹ Brunnée and Toope, supra note 12 at 43–44, 56.

³² Ibid.

³³ Ibid at 130.

³⁴ Ibid.

³⁵ Ibid.

³⁶ Ibid at 79.

³⁷ Ibid at 13.

³⁸ Ibid at 43.

³⁹ Rawls, John, “The Idea of an Overlapping Consensus” (1987) 7 Oxford J Leg Legal Stud 1 CrossRefGoogle Scholar; Rawls, John, A Theory of Justice, revised edition (Cambridge, MA: Belknap Press, 1999 (original edition published 1971)CrossRefGoogle Scholar. Rawls’ theory of political justice focuses on the institutional framework (the “basic structure”) of a polity — that is, on domestic, rather than international, ordering. However, Rawls was also interested in extending the principles he identified, or their analogues, to “the relations between states and the system of cooperation between them” (“Idea of an Overlapping Consensus” at 3, n 3), and he turned to international law in his last book, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999). His account of international law based on an overlapping consensus between societies with different values and political structures avoids reducing it to either an unstable modus vivendi among states with competing selfish interests (as realism risks doing) or to “universalist claims of a ‘community’ of states” that, in Brunnée and Toope’s words, supra note 12 at 79, “obfuscate the reality of deep cultural and social diversity.” (It would be remiss to invoke Rawls in a discussion of animals and justice without mentioning the work of Mark Rowlands, who, in Animals Like Us (London: Verso, 2002), adapts Rawls’ famous thought experiment, the “original position,” by including non-human animals, at least those with a mental life — so that each agent choosing the principles ofjustice in the original position, from behind a “veil of ignorance,” does not know whether he or she is a human being or a member of another species.)

⁴⁰ Finnemore, Martha and Kathryn Sikkink, , “International Norm Dynamics and Political Change” (1998) 53 Int’l Organization 887 at 895.Google Scholar

⁴¹ Ibid at 904.

⁴² Ibid at 901.

⁴³ Ibid at 902.

⁴⁴ Brunnée and Toope, supra note 12 at 59.

⁴⁵ Ibid; see also Haas, Peter, “Epistemic Communities,” in Bodansky, Daniel, Brunnée, Jutta, and Hey, Ellen, eds, The Oxford Handbook of International Law (Oxford: Oxford University Press, 2007) 792 at 793.Google Scholar

⁴⁶ Haas, supra note 45.

⁴⁷ Brunnée and Toope, supra note 12 at 62.

⁴⁸ The concept of “communities of practice” was applied to the analysis of international relations by Emanuel Adler (Brunnée and Toope, supra note 12). International practices, for Adler (and co-author Vincent Pouliot) are “the dynamic material and ideational processes that enable structures to be stable or to evolve, and agents to reproduce or transform structures.” Adler, Emanuel and Pouliot, Vincent, “International Practices: Introduction and Framework,” in Adler, Emanuel and Pouliot, Vincent, eds, International Practices (Cambridge: Cambridge University Press, 2011) 3 CrossRefGoogle Scholar.

⁴⁹ Brunnée and Toope, supra note 12 at 62.

⁵⁰ Ibid at 64.

⁵¹ Fuller, supra note 26 at 4.

⁵² Hart, HLA, “Positivism and the Separation of Law and Morals” (1958) 71 Harv L Rev 593.CrossRefGoogle Scholar

⁵³ Fuller, supra note 26 at 33–38.

⁵⁴ Ibid at 41.

⁵⁵ Brunnée and Toope, supra note 12 at 7.

⁵⁶ Ibid at 7, 25.

⁵⁷ Fuller, supra note 26 at 46–49.

⁵⁸ Ibid at 49–51.

⁵⁹ Ibid at 51–62.

⁶⁰ Ibid at 63–65.

⁶¹ Ibid at 65–70.

⁶² Ibid at 70–79.

⁶³ Ibid at 79–81.

⁶⁴ Ibid at 81–91.

⁶⁵ Ibid at 45.

⁶⁶ Ibid at 94.

⁶⁷ Brunnée and Toope, supra note 12 at 29.

⁶⁸ Ibid at 42.

⁶⁹ Ibid.

⁷⁰ Ibid at 32.

⁷¹ Ibid at 6–7.

⁷² Ibid at 15.

⁷³ Ibid at 46–52.

⁷⁴ Ibid at 46.

⁷⁵ Ibid at 47.

⁷⁶ Ibid.

⁷⁷ In a more traditional doctrinal formulation, it might be said that practice of this kind constitutes evidence of opinio juris on the part of states. Brunnée and Toope would find this explanation unsatisfying. Ibid.

⁷⁸ ICJ Statute, supra note 9, Article 38(1)(c).

⁷⁹ Ibid at 78, here discussing the identical language in Article 38 of the Statute of the Permanent Court of International Justice, 16 December 1920, as amended 14 September 1929, reprinted in (1930) 16 Trans Grotius Soc 131, which was adopted in the ICJ Statute.

⁸⁰ International Status of South-West Africa, Advisory Opinion, [1950] ICJ Rep 128, which applied the basic principles of the legal trust (common, in the court’s view, to “[n]early every legal system” (at 149)) to elucidate the international legal nature and implications of the post-First World War mandate system.

⁸¹ Tieya, Wang, “The Third World and International Law,” in St John Macdonald, Ronald and Johnston, Douglas, eds, The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (Dordrecht: Martinus Nijhoff, 1983) 955 at 973.Google Scholar

⁸² Case Concerning the Gabčtkovo-Nagymaros Project (Hungary v Slovakia), [1997] ICJ Rep 7 at 98–102 [Gabčtkovo-Nagymaros case].

⁸³ Ibid at 104.

⁸⁴ Ibid at 105.

⁸⁵ Ibid.

⁸⁶ Ibid at 106.

⁸⁷ Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), [2010] ICJ Rep 135 at para 39.

⁸⁸ As indicated in their discussion of their conclusions regarding torture. See discussion in text accompanying note 97.

⁸⁹ Cheng, Bin, General Principles of International Law as Applied by International Courts and Tribunals (Cambridge: Grotius Publications, 1987; first published 1953) at 24.Google Scholar

⁹⁰ Brunnée and Toope, supra note 12 at 265–66.

⁹¹ See discussion in Cherif Bassiouni, M, “A Functional Approach to ‘General Principles of International Law’” (1990) 11:3 Mich J Int’l L 768 at 779–81.Google Scholar

⁹² Brunnée and Toope, supra note 12 at 260.

⁹³ Ibid at 268.

⁹⁴ This is not to deny the importance of state practice, and indeed of realism, to an ethical view of international law. As Tasioulas, supra note 11 at 993, observes, “[t]he normativity ofvalues and norms depends on their being suitably integrated with human capacities, both of individuals and groups. So the need for realism, for the avoidance of issuing utopian prescriptions that are normatively idle, is one that emerges from within the ethical point of view itself.” This observation points to why borrowing the tools of the interactional framework is so useful even from an ethical universalist perspective that the framework itself would not support; it helps to ground the ethically oriented analysis and keep it honest.

⁹⁵ Bowman, Davies, and Redgwell, supra note 9 at 698.

⁹⁶ II4957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Ville), 2001 SCC 40, [2001] 2 SCR 241 at para 30 (noting that the regulation of pesticide use by a municipality was “consistent with principles of international law and policy,” including the precautionary principle). This category of policy, values, or principles has been described by Mayo Moran as including “’influential authority’ which is reducible neither to binding authority nor to what we might call the permissive extreme of persuasive authority,” a type of authority whose “demands tend to take shape at the level of values” Moran, Mayo, “Authority, Influence and Persuasion: Baker, Charter Values and the Puzzle of Method,” in Dyzenhaus, David, ed, The Unity of Public Law (Oxford: Hart Publishing, 2004) 389 at 390–91 [emphasis in the original].Google Scholar

⁹⁷ Brunnée and Toope, supra note 12 at 8. Brunnée and Toope do, however, consider the distinction between binding and non-binding law important and have accused the Supreme Court of Canada of diluting the obligatory nature of binding international law by blurring that distinction in its invocation of “law and policy.” Brunnée, Jutta and Toope, Stephen, “A Hesitant Embrace: Baker and the Application of International Law by Canadian Courts,” in Dyzenhaus, , supra note 96, 357 at 358.AMBIGUOUS (16090 citations)Google Scholar

⁹⁸ Bowman, Davies, and Redgwell, supra note 9 at 678.

⁹⁹ Ibid at 698.

¹⁰⁰ For further discussion of these and other examples, see Bowman, Davies, and Redgwell, supra note 9 at 672–99; Bowman, Michael, “The Protection of Animals under International Law” (1989) 4 Conn J Int’l L 487 Google Scholar; and Wagman, Bruce A and Liebman, Matthew, A Worldview of Animal Law (Durham, NC: Carolina Academic Press, 2011) at 279–335.Google Scholar

¹⁰¹ See generally Bowman, Davies, and Redgwell, supra note 9.

¹⁰² Ibid at 672–99.

¹⁰³ Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 UNTS 243, Can TS 1975 No 32 (entered into force 1 July 1975) [CITES], reprinted in Austen, Mark and Richards, Tamara, eds, Basic Legal Documents on International Animal Welfare and Wildlife Conservation (London: Kluwer Law International, 2000) at 16.Google Scholar

¹⁰⁴ Bowman, Michael, “Conflict or Compatibility? The Trade, Conservation and Animal Welfare Dimensions of CITES” (1998) 1 J Int’l Wildlife L & Policy 9 at 10, 59Google Scholar. See also the discussion of the effectiveness and enforcement of CITES more generally in Kelch, Thomas G, Globalization and Animal Law (Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2011) at 231–37.Google Scholar

¹⁰⁵ CITES, supra note 103, Article 8(3). Parallel requirements are found in Article 3(2)(c) (export of Appendix I species); Article 3(4)(b) (re-export of Appendix I species); Article 4(2)(c) (export of Appendix II species); Article 4(5)(b) (reexport of Appendix II species); Article 4(6)(b) (introduction from the sea of Appendix II species); Article 5(2)(b) (export of Appendix III species); and Article 7(7)(c) (waivers for travelling exhibitions). However, see Bowman, supra note 100 at 43–45, on whether an apparent drafting quirk renders this requirement inoperative.

¹⁰⁶ CITES, supra note 103, Articles 8(4) and 8(5).

¹⁰⁷ “Trade with States Not Party to the Convention,” Resolution Conf 9.5 (Rev COP14), CITES, COP-9, Fort Lauderdale, United States, 7–18 November 1994, online: <http://www.cites.org/eng/res/all/09/E09-05R14.pdf> [emphasis added].

¹⁰⁸ CITES, “What Is CITES?” online: <http://www.cites.org/eng/disc/what.shtml>.

¹⁰⁹ Harrop, Stuart R, “The International Regulation of Animal Welfare and Conservation Issues through Standards Dealing with the Trapping of Wild Mammals” (2000) 12:3 J Envt’l L 333 at 337–38Google Scholar; Bowman, supra note 100 at 27–28.

¹¹⁰ Resolution 5 on the Humane Killing of Marine Life, United Nations Conference on the Law of the Sea, Official Records 144, Doc A/CONF.13/L56 (1958), Vol II, Annexes at 109, cited in Bowman, Davies, and Redgwell, supra note 9 at 679.

¹¹¹ Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, 30 ILM 1455, Article 3(6) (entered into force 14 January 1998), Annex II, re-printed in Austen and Richards, supra note 103 at 40.

¹¹² Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity, Secretariat of the Convention on Biological Diversity, Montreal, 2004, online: <http://www.cbd.int/doc/publications/addis-gdl-en.pdf> at 18 (operational guideline pursuant to Principle 11) [emphasis added]. Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79, Can TS 1993 No 24 (entered into force 29 December 1993).

¹¹³ International Convention for the Regulation of Whaling, 2 December 1946, 161 UNTS 72 (entered into force 10 November 1948) [ICRW], reprinted in Austen and Richards, supra note 103 at 121.

¹¹⁴ Gillespie, Alexander, “Humane Killing: A Recognition of Universal Common Sense in International Law” (2003) 6 J Int’l Wildlife L & Policy 1 at 6–7.Google Scholar

¹¹⁵ Bowman, supra note 100 at 497.

¹¹⁶ Ibid. The draft texts of the International Convention for the Protection of Animals and four protocols (the Welfare Protocol of Companion Animals, the Protocol for the Care of Exhibited Wildlife, the Protocol for the Taking of Wild Animals, and the Protocol for the International Transportation of Animals) are available online: <http://www.animallaw.info/treaties/itconfprotanimal.htm>.

¹¹⁷ The provisional draft text of the proposed Universal Declaration on Animal Welfare as of 2011 is available online: <http://s3.amazonaws.com/media.animalsmatter.org/files/resource_files/original/Latest%20draft%20UDAW%20Text%20-%202011.pdf?1314177486>.

¹¹⁸ The World Society for the Protection of Animals (WSPA) stated that forty governments have endorsed the UDAW in a news item posted on its website in 2010. WSPA, “Support Grows in Latin America for a UDAW,” online: <http://news.animalsmatter.org/>.

¹¹⁹ House of Commons Debates, 40th Parl, 2nd Sess, No 109 (6 November 2009) at 1400; WSPA, “UDAW Campaign Reaches Critical Milestone,” online: <http://news.animalsmatter.org/page/2>.

¹²⁰ The constitutive instrument is the 1924 International Agreement for the Creation at Paris of an International Office for Epizootics, 25 January 1924, 57 UNTS 135.

¹²¹ Bowman, Davies, and Redgwell, supra note 9 at 698. The World Organisation for Animal Health (OIE) was formed following an outbreak of rinderpest (“cattle plague”) in Belgium in 1920, originating from cattle in international transit via the Belgian port of Antwerp. OIE, “History,” online: <http://www.oie.int/about-us/history/>.

¹²² Vallat, Bernard, “Foreword,” in Proceedings of the Global Conference on Animal Welfare: An OIE Initiative, Paris, 2004 (Paris, Luxembourg: Office for Official Publications of the European Communities, 2004) vii at vii, online: <http://www.oie.int/fileadmin/Home/eng/Conferences_Events/docs/pdf/proceedings.pdf> [2004 Conference Proceedings].Google Scholar

¹²³ Ibid.

¹²⁴ OIE, “International Standards,” online: <http://www.oie.int/international-standard-setting/overview/>.

¹²⁵ David Bayvel, AC, “The International Animal Welfare Role of the Office International des Epizooties: The World Organisation for Animal Health,” in Turner, Jacky and D’Silva, Joyce, eds, Animals, Ethics and Trade: The Challenge of Animal Sentience (London: Earthscan, 2006) 248 at 248.Google Scholar

¹²⁶ Resolution no 23 on Animal Welfare, 2009, OIE, adopted during the 77th General Session, 24–29 May 2009, Paris, online: <http://www.oie.int/doc/ged/D6124.PDF>.

¹²⁷ OIE, “The OIE’s Objectives and Achievements in Animal Welfare,” online: <http://www.oie.int/animal-welfare/animal-welfare-key-themes/>.

¹²⁸ 2004 Conference Proceedings, supra note 122.

¹²⁹ OIE, Second Global Conference on Animal Welfare: Putting the OIE Standards to Work, Cairo, Egypt, 20–22 October, 2008, online: <http://www.oie.int/fileadmin/Home/eng/Conferences_Events/sites/A_AW2008/home.htm>.

¹³⁰ Terrestrial Animal Health Code, 20th edition (OIE, 2011), Article 7.1.2, online: <http://www.oie.int/international-standard-setting/terrestrial-code/access-online/> [Terrestrial Code].

¹³¹ OIE, supra note 129.

¹³² Terrestrial Code, supra note 130, Articles 7.1.2(5) and 7.1.2(6).

¹³³ Aquatic Animal Health Code, contained in OIE, supra note 127.

¹³⁴ 2004 Conference Proceedings, supra note 122 at viii.

¹³⁵ Bowman, Davies and Redgwell, supra note 9 at 698.

¹³⁶ Ibid.

¹³⁷ This section is necessarily only a cursory treatment of an extensive field. A much more detailed treatment is found in Bruce Wagman and Matthew Liebman’s recent book on comparative animal law, supra note 100. Another very useful summary of animal protection laws, organizations, and enforcement practices around the world is found in Trent, Neil et al, “International Animal Law, with a Concentration on Latin America, Asia, and Africa,” in Salem, Deborah J and Rowan, Andrew N, eds, The State of the Animals III 2005 (Washington, DC: Humane Society Press, 2005) 65.Google Scholar The Animal Legal and Historical Center of the University of Michigan College of Law maintains a collection of laws from around the world (as well as some international materials). Animal Legal and Historical Center, online: <http://www.animallaw.info/nonus/index.htm>. See also discussion of the global growth of animal welfare law and of burgeoning public opinion around the world to the effect that animal welfare is an important issue, in Cook, Kate and Bowles, David, “Growing Pains: The Developing Relationship of Animal Welfare Standards and the World Trade Rules” (2010) Rev Eur Comm & Int’l Envt’l L 227 at 228–29.Google Scholar

¹³⁸ Basic Law for the Federal Republic of Germany (23 May 1949, as amended through 21 July 2010), Article 20a, English version available online: <http://www.gesetze-im-internet.de/englisch_gg/index.html>. The reference to animals was inserted by an amendment in 2002. See discussion in Haupt, Claudia E, “The Nature and Effects of Constitutional State Objectives: Assessing the German Basic Law’s Animal Protection Clause” (2010) 16:2 Animal L 213.Google Scholar

¹³⁹ Federal Constitution of the Swiss Confederation (18 April 1999, as amended through 1 January 2011), Article 80, English version available online: <http://www.admin.ch/ch/e/rs/1/101.en.pdf>.

¹⁴⁰ Ibid, Article 120(2).

¹⁴¹ Constitution of the Federative Republic of Brazil (5 October 1988, as amended through 1996), Article 225(I)(VIII), English version available online: <http://pdba.georgetown.edu/Constitutions/Brazil/english96.html>.

¹⁴² Constitution of India (26 January 1950, as amended through 23 September 2011), Article 51(A)(g), English version available online: <http://lawmin.nic.in/olwing/coi/coi-english/coi-indexenglish.htm>. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

¹⁴³ Trent et al, supra note 137.

¹⁴⁴ Ash, Kyle, “The Rights of Nonhuman Animals and World Public Order: A Global Assessment” (1983–84) 38 NYL Sch L Rev 377 at 409.Google Scholar

¹⁴⁵ Clubb, Ros, “The Welfare of Animals Bred for Their Fur in China,” in Turner, and D’Silva, , supra note 125, 180 at 186–89.AMBIGUOUS (21608 citations)Google Scholar

¹⁴⁶ Moore, Malcolm, “China Bans Animal Circuses,” Daily Telegraph (18 January 2011), online: <http://www.telegraph.co.uk/news/worldnews/asia/china/8266563/China-bans-animal-circuses.html>, describing “attractions where live chickens, goats, cows and even horses are sold to visitors who can then watch them be torn apart by big cats.”Google Scholar

¹⁴⁷ Ibid.

¹⁴⁸ Trent et al, supra note 137 at 73.

¹⁴⁹ Cook and Bowles, supra note 137 at 228.

¹⁵⁰ Ibid at 229; Wei, Song, “Animal Welfare Legislation in China: Public Understanding and Education,” in Turner, and D’Silva, , supra note 125, 101 AMBIGUOUS (48392 citations)Google Scholar; J Li, Peter, “The Evolving Animal Rights and Welfare Debate in China: Political and Social Impact Analysis,” in Turner, and D’Silva, , supra note 125, 111.AMBIGUOUS (46358 citations)Google Scholar

¹⁵¹ And, arguably, to choose whether or not to be bound by customary international law (since states create custom through their practice and recognition of the law and also have the option of remaining unbound by being “persistent objectors”), although this is a more complicated issue.

¹⁵² European Convention for the Protection of Animals Kept for Farming Purposes, 10 March 1976, 1976 Eur TS 87 (entered into force 10 September 1978), reprinted in Austen and Richards, supra note 103 at 327.

¹⁵³ European Convention for the Protection of Animals during International Transport, 6 November 2003, CETS 193 (entered into force 14 March 2006).

¹⁵⁴ European Convention for the Protection of Animals for Slaughter, 10 May 1979, Eur TS 102 (entered into force nJune 1982), reprinted in Austen and Richards, supra note 103 at 334.

¹⁵⁵ European Convention for the Protection of Vertebrate Animals Used for Experimental and Other Scientific Purposes, 18 March 1986, Eur TS 123 (entered into force 1 January 1991), reprinted in Austen and Richards, supra note 103 at 356; see also Protocol of Amendment to the European Convention for the Protection of Vertebrate Animals Used for Experimental and Other Scientific Purposes, 22 June 1998, Eur TS 170, reprinted in Austen and Richards, supra note 103 at 366.

¹⁵⁶ European Convention for the Protection of Pet Animals, 13 November 1987, Eur TS 125 (entered into force 1 May 1994), reprinted in Austen and Richards, supra note 103 at 349.

¹⁵⁷ Wilkins, David B, “Outlawed in Europe: Animal Protection Progress in the European Union” in Turner, and D’Silva, , supra note 125, 219 at 220.AMBIGUOUS (20465 citations)Google Scholar

¹⁵⁸ Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 2 October 1997, [1997] OJ C 340/1, 37 ILM 56 (entered into force 1 May 1999).

¹⁵⁹ Treaty on European Union, [2010] OJ C 83/13.

¹⁶⁰ Protocol on Protection and Welfare of Animals to the Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the Euro-pean Communities and Certain Related Acts, [1997] OJ C 340/110 [Amsterdam Protocol].

¹⁶¹ See Bowman, Davies, and Redgwell, supra note 9 at 680–81 (positing that animal protection may function in international law in general mainly as a procedural principle that requires due regard to be paid to welfare considerations when formulating or implementing policies) and discussion later in this article.

¹⁶² Treaty on the Functioning of the European Union, [2010] OJ C 83/47.

¹⁶³ Critics have argued, however, that EU measures still do not go far enough in certain respects. See, eg, Stevenson, Peter, European Union Law on the Welfare of Farm Animals (Petersfield, UK: Compassion in World Farming Trust, 2004) at 23–28, online: <http://www.ciwf.org.uk/includes/documents/cm_docs/2008/e/eu_law_2004.pdf>, arguing for the adoption of various reforms to enhance animal protection.,+arguing+for+the+adoption+of+various+reforms+to+enhance+animal+protection.>Google Scholar

¹⁶⁴ Ibid at 4.

¹⁶⁵ Recommendation no. 287 on the International Transit of Animals, Council of Europe, 13th Sess (Second Part), Doc 1340 (1961). See discussion in Bowman, Davies, and Redgwell, supra note 9 at 679; and Ausems, Egbert, “The Council of Europe and Animal Welfare” in Council of Europe, supra note 16, 233 at 233.Google Scholar

¹⁶⁶ Tudge, Colin, “Conclusion: Animal Welfare and the Ideal of Europe,” in Council of Europe, supra note 16, 255 at 255.Google Scholar

¹⁶⁷ Ibid.

¹⁶⁸ Bowman, Davies, and Redgwell, supra note 9 at 698.

¹⁶⁹ Hirata, Keiko, “Why Japan Supports Whaling” (2005) 8 J Int’l Wildlife L & Pol’y 129 at 141–42.Google Scholar

¹⁷⁰ Coetzee, JM, Elizabeth Costello (New York: Viking, 2003).Google Scholar

¹⁷¹ Ibid at 105. This passage is used by Maneesha Deckha as the entry point for a discussion of post-colonialism and animal justice in “Animal Justice, Cultural Justice: A Posthumanist Response to Cultural Rights in Animals” (2007) 2 J Animal L & Ethics 189.

¹⁷² An Act to Prevent the Cruel and Improper Treatment of Cattle, Geo IV, c 7 [Martin’s Act]. The state of Maine adopted an animal cruelty statute one year earlier. See Favre, David and Tsang, Vivien, “The Development of Anti-Cruelty Laws during the 1800s” (1993) 1 Detroit College L Rev 1 at 8–9.Google Scholar

¹⁷³ This sea change, and the early development of English animal welfare law, are recounted in Shevelow, Kathryn, For the Love of Animals: The Rise of the Animal Protection Movement (New York: Henry Holt, 2008).Google Scholar

¹⁷⁴ McKeon, Richard, “Introduction,” in Nikam, NA and McKeon, Richard (ed and trans), The Edicts of Ashoka (Chicago: University of Chicago Press, 1966) v at ix;Google Scholar “Rock Edict XIII” in Nikam and McKeon (at 27) (expressing “profound sorrow and regret because the conquest of a people previously unconquered involves slaughter, death and deportation”); Key Chapple, Christopher, Nonviolence to Animals, Earth and Self in Asian Traditions (Albany, NY: State University of New York Press, 1993) at 26.Google Scholar

¹⁷⁵ Preece, Rod, Sins of the Flesh: A History of Ethical Vegetarian Thought (Vancouver: UBC Press, 2008) at 69.Google Scholar

¹⁷⁶ “Rock Edict I,” in Nikam and McKeon, supra note 174 at 55–57 (providing that “[n]o living creature shall be slaughtered here … Many thousand living creatures were formerly slaughtered every day for curries in the kitchens of His Majesty. At present, when this edict on Dharma is prescribed, only three living creatures are killed daily, two peacocks and a deer … In the future, not even these animals shall be slaughtered.”)

¹⁷⁷ Chapple, supra note 174 at 9–11.

¹⁷⁸ Ibid at 11.

¹⁷⁹ Ibid at 17.

¹⁸⁰ Ali, supra note 16 at 149 (noting that for Muslims “the rights of animals are part of an ethical system … embracing human rules of conduct vis-à-vis all creatures”).

¹⁸¹ Foltz, Richard C1, Animals in Islamic Tradition and Muslim Cultures (Oxford: Oneworld Publications, 2006) at 27.Google Scholar

¹⁸² Ibid. The modifying phrase “very nearly” is, of course, significant.

¹⁸³ Wise, Steven M, “Hardly a Revolution: The Eligibility of Nonhuman Animals for Dignity-Rights in a Liberal Democracy” (1998) 22:4 Vt L Rev 793 at 890.Google Scholar

¹⁸⁴ Chandola, M Varn, “Dissecting American Animal Protection Law: Healing the Wounds with Animal Rights and Eastern Enlightenment” (2002) 8 Wis Envtl LJ 3 at 28, n 252.Google Scholar

¹⁸⁵ Ibid at 25.

¹⁸⁶ These statutes, as well as codes of practice and some key cases, are brought together in Gandhi, Maneka, Husain, Ozair, and Panjwani, Raj, eds, Animal Laws of India, 3rd edition (New Delhi: Universal Law, 2006).Google Scholar

¹⁸⁷ Shevelow, supra note 173 at 75–80.

¹⁸⁸ Ibid.

¹⁸⁹ Oswald, John, The Cry of Nature; or, an Appeal to Mercy and to Justice, on Behalf of the Persecuted Animals , reprinted in Garrett, Aaron, ed, Animal Rights and Souls in the Eighteenth Century, volume 4 (Bristol, UK: Theommes Press, 2000) at 81.Google Scholar

¹⁹⁰ Bentham, Jeremy, Principles of Morals and Legislation (New York: Hafner Publishing, 1961; first published 1789) at 310, n 1.Google Scholar

¹⁹¹ Stuart, Tristram, The Bloodless Revolution: A Cultural History of Vegetarianism from 1600 to Modern Times (New York: WW Norton, 2007) at 59.Google Scholar

¹⁹² Martin’s Act, supra note 172.

¹⁹³ Brunnée and Toope, supra note 12 at 141–77.

¹⁹⁴ As articulated byJustice of Appeal Antonio Lamer (as he then was), interpreting in the domestic Canadian context the criminal offence of animal cruelty (then defined in the Canadian Criminal Code, RSC 1970, c C-34, s 402(1), as willfully causing “unnecessary pain, suffering or injury to an animal or a bird”) in R v Ménard (1978), 43 CCC (2d) 458 (Que CA) at 465–66: “[T]helegality of a painful operation must be governed by the necessity for it, and even where a desirable and legitimate object is sought to be attained, the magnitude of the operation and the pain caused thereby must not so far outbalance the importance of the end as to make it clear to any reasonable person that the object should be abandoned rather than that disproportionate suffering should be inflicted” [emphasis added].

¹⁹⁵ See, eg, Hirata, supra note 169 at 142, observing that “[t]o the Japanese, it is hypocritical that Westerners consider it morally wrong to kill certain mammals such as whales but consider it acceptable to kill others, such as kangaroos (in Australia) and cattle (in the United States).”

¹⁹⁶ Brunnée and Toope, supra note 12 at 259.

¹⁹⁷ Ibid at 64.

¹⁹⁸ EC Council Directive 1999/74 Laying Down Minimum Standards for the Protection of Laying Hens, [1999] OJ L 203/53.

¹⁹⁹ Brunnée and Toope, supra note 12 at 256.

²⁰⁰ Ibid.

²⁰¹ Finnemore and Sikkink, supra note 40.

²⁰² Wilkins, David B, “Outlawed in Europe: Animal Protection Progress in the European Union” in Turner, and D’Silva, , supra note 125, 219 at 224 AMBIGUOUS (20130 citations)Google Scholar; see also ICFAW, “Representing Global Animal Welfare Organisations at the OIE,” online: <http://www.icfaw.org/index.html>.

²⁰³ As the term is used by Haas, supra note 45.

²⁰⁴ Brunnée and Toope, supra note 12 at 131.

²⁰⁵ Ibid at 64.

²⁰⁶ Bowman, supra note 100 at 60–61.

²⁰⁷ Trent et al, supra note 137.

²⁰⁸ Bowman, Davies, and Redgwell, supra note 9 at 680; see also the discussion in the first section of this article.

²⁰⁹ Tasioulas, supra note 11 at 1005.

²¹⁰ Bowman, Davies, and Redgwell, supra note 9 at 680.

²¹¹ Ibid at 681.

²¹² Bassiouni, supra note 91 at 776–77.