Mapping the Territory of Animal Law
Mapping the Territory of Animal Law
Abstract and Keywords
Chapter 1 cuts through the tangle of scholarly arguments that obscure the law of jurisdiction, and offers a robust conceptual framework in which jurisdiction and extraterritoriality can be situated. It first describes the historical and conceptual factors that have redistributed jurisdictional space and corrects the most common misapprehensions voiced about jurisdiction by legislators and scholars. To elucidate the terms and concepts behind territoriality and extraterritoriality, the author develops a comprehensive extraterritoriality framework that categorizes jurisdictional norms by their anchor point, their regulated content, and their ancillary effects. The framework, which draws on established principles of the law of jurisdiction, can be used to determine whether a matter is territorial, indirect extraterritorial, or direct extraterritorial. The author introduces four case groups to illustrate the challenges animal law poses to the modi operandi of the law of jurisdiction and uses them to demonstrate the feasibility of the framework.
§1 Cornerstones of Jurisdiction
The law of jurisdiction is a topic that is becoming increasingly important in international law, at a time when trade, commerce, finance, and their spillover effects are ever more entangled. Sorting out which state is competent to regulate an entangled matter brings order into chaos, it connects threads that are currently in disarray, and helps to resolve disputes that arise at this interface. But the concept of jurisdiction is not a simple one. What it is, how it can be used, and who defines it are all questions that defy succinct summation. This chapter aims to shed light on these foundational questions and bring to the fore the historical and conceptual factors that have led states to redistribute jurisdictional space. I then define and unpack the terms and concepts of territoriality and extraterritoriality. To do so, I develop a comprehensive extraterritoriality framework that categorizes jurisdictional norms by splitting them into different structural elements: anchor points, content regulation, and ancillary effects. These tools will help unravel complex cross-border relationships and determine the roles animals play in them. To demonstrate the feasibility of the framework, I develop four case groups that each highlight a key area: corporate exploitation of low animal protection standards abroad (i.e., outsourcing), trade in animals and animal products, animal migration, and exploitation of weak animal laws abroad by individuals (e.g., trophy hunting or bestiality).
In principle, states are their own regulators and have jurisdictional Kompetenz-Kompetenz or originary jurisdiction.1 In this first, very abstract state, states gradually placed limits on their authority and began to define when and how they can use that authority. Many states decided to transfer some of their jurisdictional authority to another state, a regulatory entity, an institution, or an international court, like the UN,2 the ICJ,3 the International Criminal Court (ICC),4 or special tribunals.5 The jurisdictional authority a state confers on another such entity is called derivative jurisdiction. Supranational bodies may also exercise jurisdiction, but they rely on international agreements that reach beyond the nation-state and create an “autonomous and sui generis constitutional order.”6 Herein, however, I am primarily interested in originary jurisdiction of states and the jurisdiction of supranational organizations that perform acts in lieu of states, like the European Union that possesses jurisdictional competence in a quasi-originary position. In other words, this study inquires into extraterritorial jurisdiction that expands horizontally rather than vertically.
Although states enjoy inalienable and originary jurisdictional authority, they are not competent to determine the spatial limits of their jurisdictional competence individually and autonomously. Because disagreements over the reach of the jurisdictional competences of states, ratione loci, only arise when jurisdiction conflicts or concurs, they rarely touch matters under the exclusive purview of a single state.7 In most cases, international law is the competent body to govern questions concerning the territorial powers of states, not least because the regulatory ideals of international law are to create order and peace, and to ensure states’ sovereign equality.8
The jurisdictional limits determined by international law operate in an ultima ratio manner. The norms of international law do not provide an optimum level of regulation but require that states meet minimum standards when they exercise jurisdiction in cross-border (p.13) scenarios. These minimum standards manifest as prohibitory rules like the duty not to intervene in the domestic affairs of another state. They can also take the form of positive, permissive rules on which states can base their extraterritorial jurisdiction. Conversely, international law does not require states to legislate extraterritorially.9 A notable anomaly in this respect is human rights law, where mandatory jurisdictional rules for states to respond to governance gaps that facilitate human rights violations is widely debated.
The international doctrine of jurisdiction provides a framework of rules and principles that apply to all fields of law: criminal, administrative, constitutional, and private law.10 In matters of public law, which encompasses criminal, administrative, and constitutional law, states usually apply domestic law to a case or dismiss it. This approach is known as the unilateral determination of the application of domestic law. In contrast, private law uses all-sided rules of conflict that mandate applying either domestic or foreign substantive law. When it applies foreign law, a state’s court simply borrows another state’s laws to resolve the dispute. The legal rules that address the territorial reach of private law are well established and methodologically independent. But “private international law,” contrary to what the term seems to indicate, is by and large domestic law, while its reference or function is international.11 Where private international law forms part of states’ domestic law, it must stand the test of public international law, just as domestic law generally does.12 Some states have entered harmonized jurisdictional rules in the realm of private law, like those established under the European Union’s aegis.13 In this case, the international doctrine of jurisdiction uses both customary international law and treaty law.
Critics repeatedly voice their fears about extraterritorial jurisdiction, arguing that politically stronger states can use it to oppress and impose values on economically weaker or dependent states. The law of jurisdiction undoubtedly is politically charged, which can, at least in part, be explained by its close connection to the concept of power. Earlier rulings make the link clear, as when the US Supreme Court ruled in McDonald v. Mabee in 1917 that “[t]he foundation of jurisdiction is physical power.”14 Though jurisdiction may be intricately tied to physical power, this does not imply that power legitimates jurisdiction or, indeed, that it is equivalent to jurisdiction. The relationship between the two is vexed, and this becomes apparent in scholars’ struggle to define jurisdiction. Two elements reappear in their definitions. The first cluster of definitions relates to physical power (i.e., the power,15 ability,16 or capacity17 to act or affect), and the second relates to legality (i.e., the competence18 or right19 to decide or regulate). The definitional dichotomy of jurisdiction reflects broader debates about the legitimation of power either by one’s capacity to use force (potentia) or by the authorization to use force (potestas).20 Earlier conceptions of jurisdiction might have been correct in identifying power as their base, but jurisdiction, as understood today, does not represent a physical, forcible act as an expression of sovereign power per se, but is preoccupied with (international) law-bound state acts that prescribe and enforce law. Because the law of jurisdiction is a system of rules-based authorization of power, the relatively neutral term authority21 seems to be the closest and best definitional equivalent of jurisdiction.
The law of jurisdiction operates by different sets of rules when it determines the limits of states’ jurisdiction, depending on whether it deals with regulatory or enforcement authority. Enforcement authority is the authority of states to induce compliance and punish noncompliance with their norms.22 Law enforcement is brought about by governmental force but may also include elements of persuasion. In exercising regulatory authority, in contrast, states connect a state of affairs with legal consequences. Regulatory authority refers to the authority to create and pass laws, binding rules below the level of laws by the legislature (e.g., decrees, nonadministrative regulations, etc.), regulation by administrative agencies, and judgments issued by courts (judge-made law and interpretation of other laws).
(p.15) Regulatory authority operates both abstractly and concretely. Abstract regulatory authority manifests when a state prescribes law; concrete regulatory authority is exercised by applying law. The prescription of law is abstract, as it regulates a multitude of facts, and it is general, as it applies to an unknown circle of prospective addressees. Prescriptive jurisdiction is aimed at organizing state institutions, determining substantive values of the state order (basic rights and axiomatic principles of a state, such as good faith or public morality), creating obligations (actions and omissions), and creating legal relationships or statuses of persons (e.g., legal personhood or civil status) and goods (e.g., property or ownership).23 The application of law, in contrast, is concrete, as it applies to a specific situation, and it is individual, as it applies to a specific circle of addressees.24 The law is applied either through decisions of the court or through administrative acts. Adjudicative jurisdiction arises as a distinct legal question only in private international law, where a state court’s jurisdiction over a case and the application of domestic law might not be congruent.25 Under international law, we still speak of adjudicative jurisdiction in reference to all fields of law. Figure 1.1 illustrates the elements of jurisdictional authority and the three types of jurisdiction: prescriptive, adjudicative, and enforcement jurisdiction.
Under public international law, enforcement jurisdiction is clearly distinct from all other types of jurisdiction. The basic rule is that every state’s jurisdiction to enforce law is limited to its own territory, marked by the “continued salience of territorialism.”26 Acts of enforcement include the use of physical force and other acts of imperium, like investigations, issuance of writs, service of documents, and approaching or hearing witnesses.27 The prohibition of enforcement jurisdiction on foreign territory derives from the principle of territorial integrity and the principle of nonintervention as enshrined in article 2 paras. 4 and 7 of the UN Charter. Exceptions to this rule can only be created by consent, say, through mutual (p.16) assistance treaties in criminal law,28 or by customary international law, like customary rules governing the issuance of passports or visas on foreign soil.29
C. Usefulness of Prescriptive Jurisdiction
Though extraterritorial enforcement raises interesting questions and debates in international law, I here focus solely on the admissibility of extraterritorial prescriptive jurisdiction. This analysis may appear unduly narrow and may throw into question the usefulness of extraterritorial prescriptive jurisdiction. Why should states seek to regulate certain facts, persons, or things present on foreign territory, if they lack the necessary jurisdiction to enforce their laws? States continue to regulate matters on foreign territory because they may hark back to judicial assistance treaties with foreign states to ensure their laws are enforced abroad. However, assistance agreements commonly cover only a fraction of prescriptive authority (e.g., only certain criminal laws) and do not enshrine a strict duty to assist.30 The promise of enforcement across the border, hence, is a feeble one.
Alternatively, states may use indirect means to ensure compliance with their norms on foreign territory. By leading addressees of a norm into a conflict of compliance, states can expect adherence to their laws even where they cannot enforce them. A state prescribing laws with extraterritorial reach may threaten to sue the foreign addressee of the norm on its territory, to seize their assets, to bar them from entering its territory, or to prevent them from establishing an enterprise on its territory. Diplomatic or financial cooperation might also be ended or frozen, and indirect penalties might be imposed through international money markets.31 These means of territorial enforcement ensure that norms are observed even across the border. The addressee of a norm performs a cost-effectiveness analysis of available options and finds that the potential negative effects of not complying with the norms are greater than the positive effects of ignoring them. Through “the appeal of persuasion,”32 states can affect people, places, and things beyond their territories, and this gives practical relevance to their extraterritorial animal laws without raising controversial issues of extraterritorial enforcement.
A. The Historical Rise
At the beginning of the twentieth century, the territorial ambit of states’ jurisdictional authority was nearly unfettered. The Permanent Court of International Justice’s (PCIJ) judgment in the 1927 Lotus case represents the last cornerstone of the then-predominant laissez-faire attitude. The Court determined that states are free to exercise jurisdiction beyond their territory unless international law explicitly restricts them from doing so.33 The judgment was decided by the casting vote of the president and has been widely criticized by scholars and in subsequent court rulings for taking a stance toward states’ authority that was too libertarian, and for prompting an increase in jurisdictional disputes.34
In the following decades, scholars moved to view the territorial connection of a state as “the strongest ground for asserting that a state has jurisdiction.”35 It was frequently maintained that states enjoy exclusive jurisdiction within and over their territory. In the Island of Palmas case, the sole arbitrator, Max Huber, held that the “principle of exclusive competence of the State in regard to its own territory” is the “point of departure in settling most questions that concern international relations.”36 From the alleged exclusivity of territorial jurisdiction, some inferred that other jurisdictional principles merely function as exceptions to the territoriality principle and that there is a complementary prima facie illegality of extraterritorial jurisdiction.37 For instance, in India, the United Kingdom, and the United States, crime was commonly viewed as local and excluded jurisdiction over aliens abroad.38
After World War II, jurisdictional principles in criminal law were in upheaval, since traditional territorial interpretations stoked the public’s fears of impunity for war criminals.39 The failure of the international community to establish effective criminal tribunals and fears that foreign corporations would come to dominate national markets spurred demands for jurisdictional expansion. During the advent of the first wave of globalization in the 1970s through 1980s, the extraterritoriality dispute gained momentum in antitrust law and securities regulation. From the 1990s on, terrorist activities increased around the globe and so did the jurisdictional responses to them (including the Tokyo Convention, the Hague Hijacking Convention, and the Montreal Convention).40 The debate on the territorial limits (p.18) of criminal jurisdiction peaked with the prosecutions of universal crimes in the 1990s, including the creation of the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR).41 In the following years, spurred by these legal developments and the need to tackle some of the most sweeping onsets of globalization, states began to use extraterritorial jurisdiction in antitrust law, banking law, bribery and corruption regulation, criminal law, insolvency law, securities law, tax law, tort law, trade law, data protection, human rights law, and other areas.42 Questions of how far, and under which conditions the laws of one state can or must reach into the territory of another are now emerging in areas like labor law, environmental law, and animal law.43
B. Emerging Spheres of Jurisdiction
Possibly because extraterritorial jurisdiction appears to be a self-explicating term, it invites a host of prima facie value judgments that fail to pay sufficient regard to the different forms and types of jurisdiction. Jurisdictional spheres, as established by Meng and Rudolf, can help us unpack these confusions and begin to understand why extraterritorial jurisdiction is a popular means of persuasion for states and why and when it is considered legal.44
The sphere of jurisdiction (Regelungsgebiet) describes the spatial sphere in which a state’s regulation is designed to operate. The sphere of jurisdiction has two aspects: the sphere of regulation and the sphere of validity. The sphere of validity (Geltungsbereich)45 is the spatial area within which prescriptive jurisdiction can be enforced autonomously by a state. Due to the prohibition of extraterritorial enforcement, a state’s sphere of validity is in principle limited to its territory. The sphere of regulation (Regelungsbereich)46 is the sphere in which (p.19) persons, things, and legal relationships subject to regulation are situated. The sphere of regulation can be larger or narrower than the territory of the state, and thus broader or narrower than the sphere of validity. The sphere of regulation is defined by means of local (e.g., the location of goods or legal relationships, residence, domicile, or seat), personal (e.g., nationality or domicile of persons), and material (i.e., criteria of substantive matter, e.g., security) nexuses.
The sphere of regulation can be further divided into the sphere of anchor points and the sphere of regulatory content. The sphere of anchor points (Anknüpfungsbereich) is the spatial area in which persons, things, and legal relationships connected to their legal consequences are located. The sphere of regulatory content (Regelungsinhaltsbereich/Rechtsfolgebereich) is the sphere in which the legal consequences of a regulation should manifest. Figure 1.2 illustrates these jurisdictional spheres.
Extraterritorial prescriptive jurisdiction arises when the sphere in which persons, things, or legal relationships subject to regulation are located (the sphere of regulation) exceeds the sphere within which prescriptive jurisdiction can be autonomously enforced (the sphere of validity). We should always be clear what sphere of jurisdiction we are talking about when we debate the legality of extraterritorial jurisdiction. For instance, when we speak of “exclusive territorial jurisdiction,” we typically refer to a state’s sphere of validity and not its sphere of regulation. Yet many infer from this principle that a state’s regulatory sphere may not exceed its territory, which runs counter to the manifold regulatory interests of states and the international law of jurisdiction that has emerged in response thereto. Scholars in the seventeenth century were the first to notice discrepancies between the sphere of regulation and the sphere of validity. Grotius, in particular, used territorium “not only to refer to territory in the geographical sense, but also to the sphere within which state jurisdiction exists.”47
C. Globalization and Deterritorialization of Sovereign Space
As globalization has advanced, the discrepancy between the sphere of validity and the sphere of regulation has increased along with it and is now much larger than when Grotius first observed this development. Yet, how, exactly, did globalization trigger this shift? Before we can explain this development, we must first unpack the disputed notion of globalization.
(p.20) Globalization is an umbrella term for multileveled instances of increased global connectedness and can be conceptualized as having three dimensions: an economic dimension, the dimension of its global repercussions, and the dimension of juridico-political responses thereto.48 The first dimension of globalization is economic and was notably triggered by rapid technological advancements. Communication technologies of the early 1950s, combined with the trend toward linguistic convergence, quickly granted countless people access to a vast amount of information served at great speed.49 In the following decades, the means of transportation greatly improved and became accessible to vast numbers of people, which spurred cross-border business activity.50 This activity increased as states began to adopt open border policies. The 1970s and early 1980s heralded the first meaningful rounds of trade and services liberalization at an international level. The launch of the Uruguay Round in 1985 created the WTO with its explicit goal of liberalizing trade around the globe. In 1986, EU member states agreed to adopt the Single Europe Act (SEA), which established a single European market. The SEA was followed by the Maastricht Treaty in 1992, designed to foster more economic and political cooperation among the newly created European Union and its members.51 Around the same time, Canada and the United States concluded their first free trade agreement in 1988, and in 1992, they extended it to Mexico under the North American Free Trade Agreement (NAFTA).52 Liberalizing trade through international conventions led to unprecedented increases of flows of goods, services, and capital between countries.
The driving factors behind globalization (enhanced transport, communication technologies, flow of goods and services) radically cut costs and saved time. New structures of production appeared, where loosely connected industries became part of a web of multinational entities, pieces of an unimaginably vast puzzle.53 Lower costs and technological change gradually began to shift investment flows. The accelerated mobility of capital led to (p.21) more interconnectedness in finance and culminated in the liberalization of foreign direct investment (FDI). The benefits of being a host or home state to multinational corporations raised investment levels and technology output in agriculture, manufacturing, and, more broadly, the mobilization of services, products, and processes.54
The first, economic dimension of globalization set in motion its second dimension, the problematic repercussions of economic growth, clearly noticeable on a global scale. Among its disruptive effects are environmental degradation and pollution, human migration and class segregation, transnational organized crime, terrorism, the pitfalls of the internet, as well as increased migration of animals, trade in animals, cross-border production, and spread of disease.
This gave rise to the third dimension of globalization, which encompasses the juridico-political responses to the first two dimensions. This is the realm in which challenges posed by globalization to regulatory regimes and political branches must be resolved and the role of states as regulators—whose ability to individually fulfill state duties, such as ensuring security, rights, welfare, and protection from crime and environmental pollution, is dwindling—must be determined. Globalization modified these previously centralist concerns, because solving them now requires coordination and cooperation between multiple states.55
The three dimensions of globalization have shifted our understanding of sovereign space. Many scholars have asked what role is left for the state to play when borders begin to dissolve, and consequently lose relevance—factually, economically, and politically. The most extreme prediction of the outcome of globalization is the decline of the sovereign state.56 The argument that globalization will lead to a complete loss of state sovereignty, however, is primarily political in nature and defended by a minority of hyperglobalist scholars.57 Legal scholarship, in contrast, finds that the concept of sovereignty has been “remarkably resilient both epistemically and normatively.”58 State sovereignty still plays a central role in international law; (p.22) it is the starting point of any inquiry into legal responsibility and the introduction of new rights and duties. Newer developments suggest that states are in fact re-emphasizing state sovereignty, such as during the rise of the BRIC states (Brazil, Russia, India, and China).59
Although state sovereignty remains a core pillar of the international legal order, it has changed fundamentally. The main factors that drive globalization—political, economic, social, and ecological activities—have caused seismic shifts in traditional conceptions of sovereignty. Globalization, as some say, has “unbundled” territoriality from state sovereignty, it has deterritorialized state sovereignty.60 Three processes support this claim: the movement from state independence to interdependence, the shift from state sovereignty to sovereignty of the people, and the rise of global legal pluralism. I will briefly look at each of these in turn.
First, we are observing a movement from state independence to interdependence. Goods are often produced in the territories of several states, and diverse suppliers, producers, workers, buyers, managers, consultants, etc., contribute to their manufacture. Seemingly trivial business decisions made in one state may fundamentally shape the interests of foreign individuals, groups, or states, so government institutions cannot satisfactorily coordinate these actions without cooperating, or at least coordinating, across borders.61 In an attempt to recover their capacity to solve problems caused and exacerbated by globalization, states resort to global, nonterritorial regulatory structures. Sovereign independence thus has given way to state interdependence.62
The second observation is that sovereignty of the state has shifted to sovereignty of the people. In an era of interdependence, the Westphalian model of sovereign, exclusive state power no longer matches reality: matters are no longer left as far as possible to states’ discretion. State sovereignty now entails fundamental duties like protecting people from serious crimes or ensuring their human rights. When the people become the ultimate units of concern, sovereignty no longer lies with the ruler, but shifts to the people (from imperium (p.23) to populus). In Peters’ view, a new principle of humanity has thus emerged—the principle that human rights, human interests, and human needs must be respected—and this has become the first principle of sovereignty.63 The rise of popular sovereignty can be seen in major founding documents of international law. Article 1 of the UN Charter lays down the duty to respect the principles of equal rights and self-determination of the peoples. Article 21 para. 3 of the 1948 UDHR declares that “[t]he will of the people shall be the basis of the authority of government [. . .].”64 Sovereignty, previously bundled in a few powerful governments, now emphasizes collective, popular sovereignty.65
The third factor that weakens a strong territorial understanding of sovereignty is the shift from territorially defined regulatory structures to multilayered governance that “more closely reflect[s] the different spatial structures in which issues and problems arise.”66 The creation of adjudicatory bodies on the international level (including the ICC, ICTY, and ICTR) and the ongoing proliferation and fragmentation of international law gave rise to a new structure of regulation that is heterogeneous, multilayered, and overlapping. As a consequence, there are “many alternative competing and contending sovereignties,”67 which lie at the heart of modern global legal pluralism.68
D. The Rise of Jurisdiction Based on Personal and Organizational Sovereignty
Because sovereignty is the foundation on which jurisdiction is exercised,69 its deterritorialization has begun to shift our understanding of the doctrine of jurisdiction as primarily (p.24) territorial. Reliance on territorial considerations is today regarded as “static preservation of the legal order,” a “jurisdictional artifact,” that stems from the “obsolescent and no longer viable notion of state sovereignty.”70 The principle of territorial jurisdiction is said to suffer from the categorical shortcoming of never having been able to satisfactorily and permanently resolve conflicts. As early as 1957, Jennings pointed out: “In our present shrunken world such a strictly territorial division of jurisdiction may, it can be suggested, be unworkable [. . .].”71
While mere geographical boundaries might have effectively allocated state competence for earlier, simpler forms of government, business, and private activities, these boundaries are today less practicable. The traditional image of states as bodies with prescriptive authority limited to their territories cannot capture the complex realities of modern life or serve the plethora of interests that states and the international community at large have. Events that occur nowhere (cyberspace) and everywhere (global markets) have caused jurisdictional gaps and overlaps that recompose jurisdictional space. As states’ territories and the regulatory scope of their laws are increasingly losing congruence, the chief function of territorial jurisdiction—the effective organization of jurisdictional space—is withering away. In a highly connected world, territorial jurisdiction can no longer serve as a reliable guide for the doctrine of jurisdiction.72
In an effort to find workable bases of jurisdiction that respond to these challenges, states have established solutions freed from territorial underpinnings.73 Each of the common principles (the nationality principle, the protective principle, the universality principle, the effects principle, and the objective and subjective territoriality principles) is evidence “that in some circumstances a state is legally free to act, outside its territory to reprehend and punish activities.”74 In the Arrest Warrant, a landmark judgment on extraterritorial jurisdiction, former ICJ President Guillaume considered established the territoriality principle, the nationality principle (both the active and passive version), the protective principle, and the universality principle.75 The growing acceptance that jurisdictional principles must be decoupled from territoriality is not as remarkable as it may first appear since state sovereignty is defined by more than territory. The three aspects that together constitute sovereignty are: territorial sovereignty, personal sovereignty, and organizational sovereignty.76 And while the law of (p.25) jurisdiction has so far been concerned, mostly, with territoriality, jurisdictional principles that have emerged from personal sovereignty (e.g., the nationality principle) or from organizational sovereignty (e.g., the protective principle) rank equally with territorial jurisdiction.77
Contemporary developments suggest that jurisdictional principles founded on personal and organizational sovereignty are gaining relevance in this age of globalization. Examples include the US Alien Tort Claims Act, which permits foreign citizens to seek remedies in national courts for human rights violations committed abroad,78 or the European Union’s Derivatives Regulation, which imposes obligations on nonresident entities to prevent them from evading its provisions.79 Zerk, who assisted the Special Representative of the UN Secretary-General (SRSG) on Business and Human Rights, finds in her report on extraterritorial jurisdiction that “[i]ncreasingly, governments recognise that, in some areas, effective regulation of activities within their territories demands some degree of control over private activities beyond their borders.”80 As expressed by Judges Higgins, Koojmans, and Buergenthal in their Separate Opinion in the Arrest Warrant, “[t]he movement is towards bases of jurisdiction other than territoriality.”81
§3 The Extraterritoriality Framework
A. Jurisdictional Norms and the Extraterritoriality Framework
Even though states increasingly resort to extraterritorial jurisdiction, certainty about the legal limits of their jurisdictional authority has not developed at the same rate. To date, there is no authoritative determination in international law, much less a consensus on the grasp of the term “extraterritorial jurisdiction” or “extraterritoriality,” which explains the mixed views on its legality. Extraterritorial jurisdiction has often been associated with the extraordinary,82 illegality,83 excessive governance,84 outrageousness,85 aggressive unilateralism, or legal hegemony,86 and this exacerbated existing uncertainties. The law of jurisdiction seems trapped (p.26) in a dichotomy between “legitimate” territorial jurisdiction and “problematic” extraterritorial jurisdiction. This pejorative connotation has caused scholars and practitioners to avoid the term,87 but bypassing the terminological obstacles of extraterritoriality only delays what will inevitably reappear when we must determine the legality of extraterritorial jurisdiction. Unpacking this charged terminology is a necessary first step.
The starting point of extraterritorial jurisdiction is territory, because in the absence of territory, the law of jurisdiction (or of extra-territoriality, as it were) has no meaning. “Territory” denotes a stable, physically identified base, delimited in space by means of natural frontiers, by undisputed outward signs of delimitation, by frontier conventions, and by mutual recognition of states.88 Extraterritoriality, which comes from the Latin extra territorium, must a contrario mean “outside a state’s territory.” Approaching the term in this negative sense leaves extraterritoriality with two possible meanings: it can mean “on the territory of another state” or “on state-free territory.”
These definitions may appear to be relatively clear and unequivocal, but there are several problems with them. Extra-territoriality implies that jurisdiction is exercised without any link to sovereign territory, and hence without a link to the state exercising jurisdiction. The nationality principle, in which nationality rather than territory is the decisive criterion, would thus be extraterritorial, as would the protective and universality principles.89 Yet, if we look closer, all of these hinge on a territorial base. Nationality can only be defined by the state that endows a person with nationality. Since states are distinguished from one another mainly by their territory, nationality is valid only because a territorially defined state has granted it, so every single jurisdictional principle is ultimately linked to the distinct territories of states. The effects principle is based on the territorial effects of an extraterritorial measure. The protective principle is based on the desire of each state to ensure its territorial security, and so on. Every jurisdictional principle is based on some territorial link, but, the crux is, that might not be the only territorial link to a state.90 So a strictly linguistic definition of extraterritorial jurisdiction leaves unresolved the problems that plague the law of jurisdiction.
To tackle these terminological inadequacies, we must first acknowledge that all forms and types of extraterritorial jurisdiction are (intra)territorial by their provenance. Extraterritorial norms are generated through domestic legislative or adjudicative processes. Judges Higgins, Koojmans, and Buergenthal recognized this in the Arrest Warrant when they argued that “territorial jurisdiction for extraterritorial events”91 more accurately describes extraterritorial (p.27) jurisdiction. But norms that are (intra)territorial still capture (more or less considerable) extraterritorial aspects. So far, legal scholarship has unjustifiably collapsed these aspects and failed to ask the pivotal question: What factor is decisive in rendering jurisdiction territorial or extraterritorial? This question goes to the core of jurisdiction, and to answer it, we must scrutinize in detail the structure of jurisdictional norms.
Jurisdictional norms aim to identify connecting points to establish a state’s regulatory competence. From these points, links or nexuses can be made to the state’s jurisdiction. For instance, the nationality of persons is the source of the prescriptive authority that the state of nationality exercises over them. The connecting point “nationality” anchors and legitimizes attaching content to it, making it an anchor point. Anchor points might seem to represent the object and ends of regulation. For example, if a state intends to assert jurisdiction over a case that involves a dog’s well-being, it establishes a territorial anchor to the dog based on the dog’s current location. The dog, in this case, is both the anchor point and the object of regulation because the norm’s purpose is to ensure the dog’s well-being. But this is not necessarily the case for all forms of jurisdiction. Imagine a state that wishes to prescribe minimum standards of parental leave for corporations. The anchor point for the jurisdictional norm will be the corporation (by way of the corporation’s nationality or seat). But the regulated content pertains to social rights of third persons (in this case, parental leave for employees), so the anchor point is not necessarily the object of regulation where the consequences of a norm are intended to be felt.
The regulated content represents the centerpiece of every jurisdictional norm. Its purpose, by and large, is to fulfill the norm’s Regelungszweck. Put differently, the regulated content is a norm’s raison d’être. The anchor literally anchors, thus, legitimates and rationalizes, the sphere of regulated content to a state. Sometimes the anchor is cast exactly into the sphere of regulated content, and sometimes it is not. Moreover, dropping anchors and regulating content may cause ripple effects, so-called ancillary repercussions. A jurisdictional norm can thus be structured by its anchor point, by its regulated content, and by its ancillary repercussions.92 Figure 1.3 illustrates the basic structure of a jurisdictional norm.
Adding spatial dimensions to the jurisdictional norm generates a new set of considerations that brings us closer to distinguishing territorial from extraterritorial jurisdiction. A norm’s anchor point can lie within or outside a state’s territory, as can regulated content and ancillary repercussions. The three elements of a jurisdictional norm can thus be distinguished (p.28) by their location: territorial and extraterritorial anchor point, territorial and extraterritorial regulated content, and territorial and extraterritorial ancillary repercussions. Figure 1.4 illustrates the spatial dimensions of a jurisdictional norm, which form the backbone of the extraterritoriality framework.
B. Extraterritorial Jurisdiction stricto sensu, or Direct Extraterritoriality
The extraterritoriality framework distinguishes between direct and indirect extraterritorial jurisdiction. A jurisdictional norm is indirect extraterritorial if and only if ancillary repercussions occur on foreign territory, or, put differently, if there is neither an extraterritorial anchor point nor an extraterritorial content regulation. By contrast, a norm is extraterritorial stricto sensu (or direct extraterritorial) if its anchor point or the regulated content lies outside the prescribing state’s territory. Figure 1.5 illustrates this limited focus of extraterritorial jurisdiction stricto sensu.
As we approach the many conundrums of the extraterritoriality framework, it is crucial to keep the following caveat in mind: the extraterritoriality framework is an analytical tool that seeks to impartially define jurisdictional norms as extraterritorial or territorial. The framework dissects any jurisdictional norm into subfactors ([extra]territorial anchor point, [extra]territorial regulated content, and [extra]territorial ancillary repercussions) on the basis of which it classifies the norm as extraterritorial or territorial. The extraterritoriality framework is a formidable tool for tackling definitional conundrums and for conducting empirical research on jurisdictional practices (examining, e.g., what types of jurisdiction states use and how often they do so). However, the framework does not allow us to judge the legality of a (p.29) norm under international law. Only after this framework is applied to the norm under scrutiny can questions of legality or illegality be addressed.
Returning to the two forms of extraterritorial jurisdiction stricto sensu, I will now examine extraterritorial anchor points and extraterritorial content regulation. Extraterritorial anchor points may focus on personal, objective, or legal factors. Anchor points that relate to persons include the nationality of natural or legal persons, their seat, domicile, or residence.93 For instance, pursuant to section 5 para. 8 of the German Criminal Code, German criminal law applies when German nationals commit offenses against a person’s sexual self-determination abroad.94 The offender’s nationality is the anchor point to the state’s jurisdiction; it is personal in character and was created by a loyalty connection from the person to the state (intraterritorial anchor point). In some states, animals might qualify as person-related anchors. Animals could operate as anchors to a state either by virtue of their “nationality” (as arguably created by, for example, pet passports),95 or by their domicile or residence.
A state may also base its jurisdiction on anchor points related to objects, including the location of assets, events, or circumstances. Even if animals are considered mere property, they can constitute an independent anchor point as property, just as immovable property. Or, in the criminal realm, wrongs (e.g., cruelty or unnecessary suffering) inflicted on animals could be brought under a state’s jurisdiction by linking it to the place where the crime was committed.
A state may also link its jurisdiction to anchor points that relate to legal relations and statuses, like the place where matrimony was entered, or where someone’s legal personhood was established. So if animals are recognized as legal persons, the place that gave rise to this status would operate as an anchor point.
Since an anchor point is not necessarily the object of regulation where the intended consequences of a norm are felt, animals can also be part of a norm’s regulated content. Extraterritorial content regulation determines the content of a regulation outside a state’s territory by regulating, e.g., the institutions and substantive values of a state, obligations and rights, and legal relations of persons and of goods.96 For instance, article 3-2 of the Japanese (p.30) Criminal Code states: “This Code shall apply to any non-Japanese national who commits one of the following crimes against a Japanese national outside the territory of Japan [. . .].”97 Article 3-2 uses a personal anchor point (a Japanese national) that is intraterritorial since nationality is a permanent loyalty bond between the territorial state and the national. The content that article 3-2 regulates is extraterritorial: “None of the following crimes shall be committed outside Japan against a Japanese national.”
Animals can be part of the regulated content of a norm in several ways. They can be involved in the creation of duties. Anti-cruelty norms, for instance, create duties owed to animals by the people who are considered their owners, and by people who are not part of the property relationship.98 Animals can arguably also be rights holders. For instance, the United Kingdom’s Five Freedoms of Animal Welfare confer—as the name implies—five freedoms on animals: freedom from hunger or thirst, freedom from discomfort, freedom from pain, injury, or disease, freedom to express normal behavior, and freedom from fear and distress.99 These freedoms are sometimes regarded as freedom rights of animals.100 If these rights are created for animals located abroad, we identify this as extraterritorial content regulation. Finally, it is possible to create legal relations or statuses that involve animals in foreign territory. This is the case when ownership or some form of usufruct is asserted over animals, or when animals are accorded legal personality.
The two types of extraterritorial jurisdiction stricto sensu—extraterritorial anchor point and extraterritorial content regulation—can be combined in different ways. I explore and differentiate these combinations by flagging them as types of jurisdiction (α, ß, γ, and δ). Extraterritorial anchor points can entail intraterritorial or extraterritorial content regulation. A person whose primary business is in the territory of one state may possess assets abroad (extraterritorial anchor point) subject to taxation in their home country (intraterritorial content regulation), which is type ß. Conversely, extraterritorial content regulation can be based on intraterritorial or extraterritorial anchor points. Foreigners might have a duty to pay taxes (extraterritorial content regulation) based on real property in the state’s territory (intraterritorial anchor point), which is type γ. Another example of type γ is a domestic duty a state imposes on a domestic corporate parent (intraterritorial anchor point), demanding the corporation’s foreign subsidiaries report on their employee policies (extraterritorial content regulation). Extraterritorial anchor points and extraterritorial content regulation may also overlap, and so may intraterritorial anchor points and intraterritorial content regulation. An intraterritorial norm may use an extraterritorial anchor point and aim to regulate content outside its territory. An example of this is the direct duty imposed on a foreign subsidiary (extraterritorial anchor point) to report on its human rights performance (extraterritorial (p.31) content regulation), which is type α.101 The simplest form is type δ, which is intraterritorial prescription of content based on an intraterritorial anchor point, such as prohibiting nationals from committing murder on domestic territory. Figure 1.6 illustrates the different combinations of these types of jurisdiction.
C. The Animal Relation
Though the extraterritoriality framework is already fairly complex, it requires another set of factors. Here, I examine how the different types of jurisdiction just explained relate to animals, such as when states use them as anchors or regulate aspects of their lives. I use the term animal-related to determine if animals are an integral part of anchor points or regulated content in jurisdictional norms. As noted above, type α norms regulate content extraterritorially and use extraterritorial anchor points. If we add to that the animal-related dimension, three distinct types of jurisdiction emerge. First, type α1 emerges when animal-related extraterritorial anchor points and animal-related extraterritorial content regulation correlate (type α1): a state uses extraterritorial animal-related anchor points, and also aspires to regulate animal-related content outside its territory. This, likely, is the most extreme form of extraterritoriality. An example of type α1 jurisdiction is when a state imposes duties on foreign owners of animals (extraterritorial anchor points) to ensure adherence to its animal law (extraterritorial content regulation) (type α1). Second, animal-related extraterritorial anchor points can meet non-animal-related extraterritorial content regulation (type α2). One can imagine a state imposing a tax on dog owners if their dog is located on domestic territory, regardless of where the owners live. Third, animal-related extraterritorial content regulation can be based on non-animal-related extraterritorial anchor points (type α3), as, for example, when a direct duty is imposed on a foreign subsidiary to report on its compliance with domestic animal welfare standards.
(p.32) The same dimensions emerge in type ß jurisdictional norms. Animal-related extraterritorial anchor points can entail the regulation of intraterritorial animal-related or intraterritorial non-animal-related content. For instance, a person with their main business on domestic territory possesses animals abroad (extraterritorial anchor point); these are subject to taxation in the person’s home country (non-animal-related intraterritorial content regulation, type ß1), or subject to animal welfare regulation in the person’s home country (animal-related intraterritorial content regulation, type ß2).
Animal-related extraterritorial content regulation can moreover be based on an animal-related or non-animal-related intraterritorial anchor point (type γ). Type γ1 jurisdiction occurs when a state obliges a domestic parent corporation (non-animal-related intraterritorial anchor point) to report on its foreign subsidiaries’ compliance with domestic animal welfare standards (animal-related extraterritorial content regulation). Type γ1 jurisdiction also exists where a state requires its nationals (non-animal-related intraterritorial anchor points) to adhere to its animal laws when operating abroad (animal-related extraterritorial content regulation). Type γ2 jurisdiction is different. Based on the universality principle, a state may criminalize especially gruesome acts committed against animals wherever they are (animal-related extraterritorial content regulation), after the animal returns to the forum (animal-related intraterritorial anchor point) (type γ2). Table 1.1 illustrates the animal relation of anchor points and regulated content by the types presented and exemplified, and makes clear this book’s focus on the animal-relation of extraterritorial jurisdiction stricto sensu. (p.33)
Table 1.1 Types of jurisdiction in animal law under the extraterritoriality framework
D. Extraterritorial Ancillary Repercussions, or Indirect Extraterritoriality
Ancillary repercussions have no bearing on whether a norm is extraterritorial stricto sensu or not. In contrast to anchor points and regulated content, ancillary repercussions refer to the many implications of a norm that extend beyond the effects it was intended to have, i.e., beyond the regulated content. Lawmakers may be able to predict a norm’s ancillary repercussions, but those are not the reason a norm was initially enacted for or the reason why it is still upheld. Animals may be part of or an ancillary repercussion where they are positively or negatively affected by a norm, as a side effect. If a norm has such an effect, it has an animal-related ancillary repercussion.
Extraterritorial ancillary repercussions—also known as indirect extraterritorial jurisdiction or domestic measures with extraterritorial implications—are considered another attribute of the two forms of extraterritorial jurisdiction, rather than a distinct third form.102 Not including ancillary repercussions in the definition of extraterritoriality stricto sensu means we make some delineation to a potentially vast causal chain of events triggered by a norm. The purpose of this delineation, ideally, is to mirror a norm’s reasonable sphere of influence.103
Distinguishing extraterritorial content regulation from extraterritorial ancillary repercussions can be challenging, and the most useful test to make this task easier is the sine qua non test. If the purpose of the jurisdictional norm is not met by the extraterritorial ancillary repercussion, then the norm does not regulate content extraterritorially. Subsidy regulations are an apt example: a regulation that grants a recipient a domestic subsidy improves its market position both on the domestic and on the global market. To judge what type of extraterritorial jurisdiction the regulation is, we must determine which effects of the norm form part of the regulated content and which are ancillary repercussions. We can distinguish between the two by examining the purpose of the jurisdictional norm. Typically, subsidy regulations seek to strengthen the recipient’s economic position on the domestic market (intraterritorial content regulation). We can verify the proposition by applying the sine qua non test. If the global market position of the subsidized body does not improve (i.e., there are no extraterritorial ancillary repercussions), has the norm missed the mark? In most cases, the subsidy norm will retain its regulatory purpose since it is designed to improve the recipient’s position on the domestic market. We are thus dealing with intraterritorial content regulation that potentially has extraterritorial ancillary repercussions, and is therefore, at best, a form of indirect extraterritorial jurisdiction.
Though I have established the necessary tools for beginning an inquiry from the perspective of the law of jurisdiction, we must also determine the tools of animal law. In this section, I define the scope of this study from the perspective of animal law and show why animal law deserves a distinct and careful examination under the law of jurisdiction.
A. Of Humans and Other Animals
Questions about our treatment of animals have received broad scholarly attention only in the past two decades. New insights from neurological, biological, and psychological studies about animal behavior and cognition, like Jane Goodall’s research with chimpanzees, began garnering the attention of scholars outside these disciplines. Social sciences and humanities were the site of the initial explosion of writings and teachings about animals. Philosophy quickly caught up by developing ethical imperatives that ought to govern our manifold interactions with animals. With a heightened academic focus on the study of human-animal relationships, a new research paradigm emerged in scholarship: the animal turn.104 From a legal perspective, the animal turn eventually culminated in what is now known as animal law, namely, the study of legal norms related to animals.
In the legal discourse on the human-animal relationship, we typically identify animals as such in a generalizing and sweeping way. From a linguistic perspective, “animal” comes from the Latin word animalis, meaning “having breath of life.”105 The term was first used to describe any living being, as opposed to inanimate objects.106 Natural science then produced the necessary knowledge to distinguish between distinct forms of animate life. Contemporary science recognizes animals as eukaryotic (organisms that dispose over a membranous cell nucleus), heterotroph (they ingest other organisms or their products), multicellular, and mostly freely movable organisms of the kingdom Animalia (also called Metazoa).107 Animals differ from plants in having cells without cellulose walls, in lacking chlorophyll and the capacity for photosynthesis, in requiring more complex food materials, in being organized to a greater degree of complexity, and in having the capacity for spontaneous movement (p.35) and rapid motor responses to stimulation.108 Members of the kingdom Animalia are commonly divided into multiple subgroups called phyla. These include vertebrates (mammals [including humans], birds, amphibians, reptiles, and fishes), arthropods (insects, spiders, crabs, millipedes, centipedes, scorpions, lobsters, shrimp), mollusks (octopuses, snails, oysters, clams, and squid), annelids (leeches and earthworms), jellyfish, and sponges. Because the kingdom Animalia includes both those commonly referred to as “animals” and those commonly referred to as “humans,” taxonomies of natural science are a testament the continuity of species: any proclaimed difference between humans and animals is, at most, one of degree, not kind.109
Because humans are—biologically speaking—animals, every single legal document that was ever passed is—strictly speaking—a document of animal law. Obviously, legislators who enacted laws on bodily liberty, property, nuisance, territory, and so forth, did not intend to imbue these laws with such a wide application. A famous example for the law’s narrow reading is the Tilikum case, brought by People for the Ethical Treatment of Animals (PETA) on behalf of Tilikum, an orca kept in the SeaWorld Orlando park, against the SeaWorld corporation. The plaintiff asked the court to rule that the terms of the Thirteenth Amendment to the US Constitution applied to Tilikum, and thus that the orca’s confinement amounted to involuntary servitude or slavery. The Court was not convinced by the plaintiff’s arguments and held that the Thirteenth Amendment only applied to persons. Because Tilikum was not a person, the Court argued, he could not be accorded constitutional protection.110 The legal definition of animals is thus often much narrower than its linguistic and natural science counterpart: animals are all animals except human animals. As we tend to forget about our own taxonomic nomenclature, anthropologists and ethicists developed the expression “nonhuman animals” as a more correct term to describe the group generally referred to as animals in common usage.111 The term “nonhuman animal” is widely used in ethics, politics, anthropology, and natural sciences, but is less common in legal academic writing. In this (p.36) work, I use the word “animal” for reasons of conformity and because I want to refrain from defining a group of individuals by what they are not; however, it should be clear that I mean nonhuman animal.
Animal law is typically concerned with both the protection of animals and their welfare. Animal protection law describes all regulatory measures designed to protect animals from negative affective states, like pain, suffering, harm, anxiety, or distress.112 These laws negatively determine how animals should be treated by prohibiting acts of cruelty or neglect. Animal law has also evolved to regulate the welfare of animals. The origins of animal welfare can be traced back to the science of animal welfare, which identifies indicators for animal well-being or lack thereof from the perspectives of physiology, veterinary science, ethology, and comparative psychology.113 The World Organization for Animal Health (OIE) defines animal welfare in article 7.1.1. of its Terrestrial Animal Health Code:
Animal welfare means how an animal is coping with the conditions in which it lives. An animal is in a good state of welfare if (as indicated by scientific evidence) it is healthy, comfortable, well nourished, safe, able to express innate behaviour, and if it is not suffering from unpleasant states such as pain, fear, and distress.
Good animal welfare requires disease prevention and appropriate veterinary treatment, shelter, management and nutrition, humane handling and humane slaughter or killing.114
The OIE’s definition of animal welfare features two elements: the state of the animal, which corresponds to the scientific definition of animal welfare and refers to the physical and mental health of an animal, their well-being, and life; and the corollary treatment of animals by humans, which typically relates to humane treatment, or good animal husbandry. These terms are closely related and often mutually dependent. For example, where humans dominate important dimensions of animals’ lives, the ability of animals to thrive and experience good physical and mental well-being largely depends on humans treating them properly. And because life is a prerequisite to any enjoyment of well-being, animal welfare also covers animal life.115 In contrast to animal protection law, animal welfare laws positively regulate (p.37) the treatment of animals. Taken as a whole, laws on animal welfare and animal protection positively and negatively protect the same values (i.e., animal life and physical and mental well-being), so they are best seen as two sides of the same coin.116
Examining the territorial limits of animal protection or animal welfare laws can easily be mistaken for identifying with the welfare position in the animal welfare versus animal rights debate in animal ethics.117 The animal welfare position (also called legal welfarism or new welfarism) recognizes animal interests are worthy of protection but regards the use of animals for human interests and benefits per se as morally justifiable. Animals are only protected from human exploitation if the pain or suffering inflicted upon them is deemed unnecessary. Because humans unilaterally determine when animal suffering is necessary, laws enacted on this basis are virtually meaningless. Animal rights theorists maintain that, instead of effectively protecting animals, animal protection or welfare standards legitimate the use and exploitation of animals.118 For animals to enjoy meaningfully protected interests, they should have fundamental and actionable rights instead of simple protections.119
Prima facie, both welfarist and abolitionist norms can be examined for their territorial reach. For example, we can study the territorial limits of laws that protect whales from unnecessary suffering or of laws that respect whales’ right to life. Though I defend a strong animal rights position, the inquiry into extraterritorial jurisdiction applies to both a welfarist and an abolitionist approach. Most modern legal systems are founded on the premise that animals are property and take the welfarist position, but some have introduced certain absolute prohibitions, which may be manifestations of abolitionism as negative freedom rights.120 For example, Australia, Belgium, the Balearic Islands, the Netherlands, and New Zealand have banned invasive research on great apes, which some scholars view as negative freedom rights of great apes.121 Because these developments are in flux, subject to social change, and (p.38) embedded in widely different cultural contexts, this study applies to laws that protect animals, as well as to laws that more effectively respect animals’ interests by giving them rights.
B. Unconquered Jurisdictional Territory
Though the law of jurisdiction typically operates by the same few jurisdictional principles—the objective and subjective territoriality principles, the nationality principle, the effects principle, and the universality principle—their application to animal law is anything but simple and straightforward. Animals, or animal law, deserve distinct consideration in the law of jurisdiction, based on four considerations.
First, most animal welfare acts and regulations are silent about their territorial scope.122 Laws that fail to speak to this issue include those of Argentina,123 the states and territories of Australia,124 Austria,125 Belgium,126 Botswana,127 Brazil,128 Bulgaria,129 Canada and its provinces and territories,130 Costa Rica,131 Croatia,132 Estonia,133 the European Union,134 (p.39) Fiji,135 Finland,136 Germany,137 Gibraltar,138 Greece,139 Hong Kong,140 Iceland,141 Israel,142 Japan,143 Kenya,144 Latvia,145 Liechtenstein146 Lithuania,147 Malaysia,148 Malta,149 Myanmar,150 the Netherlands,151 New Zealand,152 Nicaragua,153 Papua New (p.40) Guinea,154 Paraguay,155 the Philippines,156 Poland,157 Portugal,158 Puerto Rico,159 Slovenia,160 Solomon Islands,161 South Africa,162 South Korea,163 Sri Lanka,164 Sweden,165 Switzerland,166 Taiwan,167 Tonga,168 Turkey,169 Uganda,170 Ukraine,171 Vanuatu,172 Venezuela,173 Zimbabwe,174 (p.41) and Zambia.175 Because these laws are silent on their territorial reach, it is prima facie unknown how they apply to cases involving a cross-border element. Only India, Norway, Tanzania, and the United Kingdom have placed limits on their animal protection acts.176 The Norwegian Animal Welfare Act, for example, applies “to Norwegian land territory, territorial waters, the Norwegian economic zone, aboard Norwegian ships and aircraft, on installations located on the Norwegian continental shelf, and to Svalbard, Jan Mayen and the dependencies.”177 Borrowing Norway’s model and tailoring it to the territorial specifics of another country is a possibility, but these countries would end up placing stricter limits on their jurisdictional authority than international law requires. So neither do they serve as apt role models, nor do they illuminate the limits of jurisdiction under international law.
The second argument refuting the general applicability of the principles of jurisdiction to animal issues is conceptual. The field of animal law draws its content from criminal, civil, and administrative norms. Most animal laws are administrative or criminal in nature, but they are also found in states’ constitutions, civil codes, trade treaties, etc. Under the doctrine of jurisdiction, the reach and regulatory density of these provisions may prima facie differ depending on whether, for example, civil or criminal jurisdiction centers the debate.178 It is unclear if, in a case of animal abuse on foreign soil, a state can use administrative orders that prohibit a person from keeping animals in the future, or only grant extraterritorial reach to criminal provisions that sanction animal abuse. Since the legality of extraterritorial jurisdiction may depend on the nature of a norm, these criminal, civil, and administrative animal laws must be carefully examined.
Third, more and more countries are changing the status of animals in civil law, and this forces us to reconsider the default jurisdictional connection to animals as objects of law. Based on the Roman law divide between objects of law and subjects of law, it was standard to deny animals subjecthood and relegate them to the category of objects along with chairs, cups, or pieces of wood. Since the advent of the Roman era, our conception and our knowledge of animals has greatly changed. Today, we recognize that animals do not fit into the category of objects because they are sentient beings who greatly influence their environment.179 (p.42) A conflict between the legal classification and our social conception of animals emerged in divorce proceedings because, unlike common property, companion animals cannot be split 50/50 after separation, and because paying off a partner did not make up for the emotional loss suffered by them. Over the past decades, states began to recognize that this mismatch pervades other areas of law and started to amend legal standards to fit public perception, by declaring that animals are not mere objects of the law. For instance, in 2002, a new provision was added to the Swiss Civil Code, stipulating that “[a]nimals are not objects.”180 A special report by the Legal Affairs Committee of the Council of States (Ständerat), which formed part of the parliamentary debates preceding the adoption of article 641a, revealed that its declared aim was to meet society’s growing concern for animals and to ameliorate the legal status of animals. The traditional conception that animals are things, as the Federal Council explained, is now seen by society as an ancient relict.181 Similar content to that of article 641a of the Swiss Civil Code is also found in the laws of Austria, Brussels, California, Canada, Colombia, the Czech Republic, France, Germany, the City of Mexico, New Zealand, Portugal, Québec, and Spain.182
These ongoing developments point to the dangers and inadequacies of law when it lags behind social developments and scientific insights. Yet, as we will see when we examine these provisions in detail, far from adequately responding to the growing recognition that animals are sentient beings to whom life greatly matters, many of these laws provide that animals will continue to be treated as objects for the purposes of the law. The growing dissolution of the Roman law divide between objects and subjects of the law is far from resolved and will undoubtedly continue to dominate social and political discourse. Despite, or even because of this indeterminacy, the doctrine of jurisdiction can no longer assume that animals are merely property that blindly follows the jurisdiction of its owner. That many countries no longer regard animals as objects seems to speak for their independent legal visibility as anchor points under the doctrine of jurisdiction. For instance, dogs of some countries have passports that provide information about their name, domicile, looks, fur color, and more, much as is done in human passports. Because these passports travel with the animal, regardless of ownership, this practice might be seen as giving rise to de facto nationality of dogs and enabling the issuing state to manifest its jurisdiction over the dogs, without regard to the owner or their whereabouts. To respond in time to these ongoing changes, the doctrine of jurisdiction must anticipate solutions now.
Fourth, though the law is shaped and co-influenced by different, often conflicting stakeholder views, the field of animal law attracts an exceptionally wide array of interested parties, including corporate actors that want to use animals, animal advocates concerned about the welfare of animals, conservationists who seek to protect animals as ambassadors of a species, social justice movements fighting intersectional oppressions, or minorities concerned about being forced to abandon their cultural practices. These stakeholders often (p.43) have diametrically opposed views about what we owe to animals and what our relationships with them must look like. Given these disparate interests, and the fact that the animals themselves are absent in the formation, application, and enforcement of law, the law of jurisdiction is faced with a particularly complex set of issues when debating the geographical reach of such norms.
These four factors—the absence of known limits to animal protection acts; the criminal, civil, and public law nature of animal law that may give rise to different jurisdictional limits; the ongoing disobjectification of animals in the law; and the multilevel and often opposed interests in animals—evidence a high degree of legal “otherness” of animal law for the purposes of studying its spatial reach under international law. We must therefore carefully scrutinize applicable, and potentially inapplicable jurisdictional axioms.
§5 Assistants along the Way: Four Case Groups
The question of how far a state’s animal laws reach ratione loci is raised on various fronts. It needs to be answered for a natural person who crosses borders with their companion animal, for a corporation that conducts animal research and establishes new branches or subsidiaries on foreign territory, for an international marketing company that helps domestic foie gras producers reach as many foreign markets as possible, for regulatory authorities that intend to prevent hormonally produced beef from entering their territory, for tourists who import products manufactured from the skins of endangered species, and many others. This book will shed light on the legality of all conceivable cross-border cases that involve animals by expounding a panoply of regulatory possibilities and analyzing them in the extraterritoriality framework. To guarantee this rather abstract framework is feasible, I will test and evaluate the theoretical approaches I establish herein by using them on four case groups that stand for the most common challenges now faced under the law of jurisdiction: outsourcing, trade, migration, and trophy hunting. I next present each case group and explain to what extent it is representative of broader debates faced in animal law, and in what sense it may illuminate our understanding of the doctrine of jurisdiction.
The first case group includes the increasing instances of multinational enterprises outsourcing corporate branches or entire corporations to foreign territory. Today, most domesticated animals are owned by legal persons who deal with animals for commercial reasons183—by breeding, raising or keeping them, using them for work, research, entertainment, therapy, display, or other purposes, or slaughtering them. Corporate behavior thus has a quantitatively and qualitatively high influence on whether animals fare well or ill in this world. It is likely a corporation will outsource its activities where an industry’s capital is mobile and home states introduce or announce stricter animal protection standards.184 For (p.44) example, in the United States, the public and several politicians have fought for years to ban horse slaughter state- and nationwide. Instead of banning horse slaughter directly—a strategy that proved impossible185—the federal government in 2006 introduced the Appropriation Act that prohibited governmental funding for federal inspectors of horse meat.186 Because institutions that slaughter horses cannot legally run their business, the funding ban on inspections effectively rendered horse slaughter illegal in the United States. From 2006 to 2007, in reaction to the ban, horse exports to Mexico increased by 312 percent.187 The entire horse-slaughter industry of the United States was effectively outsourced to Mexico as a consequence of the ban, a development that was publicly decried both by animal advocates who feared lax slaughter standards in Mexico and the meatpacking industry fearing loss of jobs. In an effort to reverse this process, parties proposed to also ban exporting horses with the proposed Safeguard American Food Exports Act in 2015, a bill that the House and the Senate failed to enact in the 114th Congress.188
That outsourcing attracts the attention of stakeholders along the entire spectrum, from ethical to economic, becomes apparent when we look at a few other examples. Live exports of farmed animals from Australia to the rest of the world are a form of outsourcing hailed or criticized by different groups. Some point to the fact that Australia loses 40,000 jobs by outsourcing sheep and cow slaughter to countries with significantly lower or no protection laws; others argue it gains economically by raising and selling the animals.189 For animals, outsourcing amounts to more suffering through dreadful, long, harsh, and taxing transportation only to end up at another location where people will kill them.
The research industry also increasingly outsources its businesses. Rice, CEO of a US pharmaceutical corporation, said in 2006: “Animal testing [. . .] does not have the political issues it has in the US or Europe or even India, where there are religious issues as well. So now big pharma is looking to move to China in a big way.”190 Few rules, few protestors, large supplies of lab primates and beagles are part of a “whole menu of advantages” that attract multinationals like Bridge Pharmaceuticals, Novartis, Pfizer, Eli Lilly, and Roche.191 (p.45) Breeding institutions that supply research facilities with new stocks of animals have also been outsourced in large numbers. Bioculture Ltd., for example, owns 19 facilities worldwide and has outsourced all primate breeding operations to Guayama, Puerto Rico. These practices are lamented by Bioculture Ltd.’s home state but have also led to protests in the countries to which they moved.192
The second case group concerns trade restrictions that are frequently accused of having some extraterritorial effect and of imposing values across borders. The most recent and exemplary case for this is the 2014 Seals case decided at the WTO.193 Iceland and Canada, with a number of intervening third parties, challenged the legality of EU measures that prohibited importing and marketing seal products within the European Union. The AB, a standing body of seven persons that hears appeals from reports issued by panels as part of the WTO’s Dispute Settlement Body (DSB), confirmed that animal welfare is an aspect of public morality and that measures that seek to protect the welfare of animals can, under narrow circumstances, justifiably restrict trade among states.194 Because the European Union’s trade measures were considered legitimate on the basis that they only indirectly protected seals found outside the European Union, scholars argue that the AB effectively acknowledged that a state can have a legitimate interest in the welfare of animals on foreign soil.195 The legality of trade restrictions employed for animal welfare reasons formed the center of debate at the WTO prior to Seals,196 and it will likely continue to do so in the future.
The third case group deals with cross-border issues that arise when animals migrate. Animal migration denotes a type of locomotory activity in which populations move seasonally to-and-fro between regions where conditions are alternately favorable or unfavorable. Migration can also be a one-way movement that leads to redistribution of an animal population.197 Animals migrate at sea, in the air, or on land, and they do so for behavioral reasons or in order to escape habitat destruction and fragmentation, armed conflict, resource scarcity, seasonal temperature changes, or climate change.198 Migratory animals include birds, mammals, fishes, reptiles, amphibians, insects, and crustaceans. Since I am concerned with cross-border movements, I focus on migration across state borders, which can be a quite arbitrary threshold for inquiry from the animals’ point of view.
Cross-border animal migration was subject to dispute as early as 1893. The Bering Sea Arbitration asked if states could assert their jurisdiction over migratory Pacific seals once (p.46) the seals had left their jurisdictional authority at sea.199 The United States claimed a right of property and protection over the seals that sojourned in and subsequently left its territorial sea.200 The United Kingdom claimed a right to harvest the seals, even if it meant rendering them extinct, based on the principle of the freedom of the high seas. The arbitral tribunal found no basis under international law for the United States to apply its standards outside its territory, whether formulated in property-related or protective terms, and decided in favor of the freedom on the high seas, hence in favor of the United Kingdom.201 More than a century after the Bering Sea Arbitration verdict, international law gives a different answer to the very same question. In Shrimp/Turtle, the United States passed an import ban on shrimp caught in a manner that threatened five species of sea turtles protected under the US Endangered Species Act (ESA) of 1973.202 Shrimp harvested with technology that adversely affected sea turtles could not be imported into the United States unless the exporting state used a fishing tool that offered a similar level of protection as the US domestic “turtle excluder device.” The AB held that US claims were provisionally justified because the country had a legally valid interest in protecting shared and endangered animals outside its jurisdiction.203 Even though the United States lost the case because of the way it implemented and applied these laws—namely, in a discriminatory and disproportional manner—an international body had recognized that a state’s interest in animal welfare may rightfully reach across territorial boundaries. More than a century before, no such legal interest was recognized or protected.204 This change of position was likely influenced by conservationist laws that emerged post-Bering, and which protect species of seals, whales, polar bears, birds, elephants, and others in treaties like the International Convention for the Regulation of Whaling (ICRW)205 or the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).206
The fourth case group highlights global ramifications and cross-border interests in trophy hunting. In July 2015, the world was outraged to hear about the death of Cecil, a black-maned lion killed by an American game hunter in Zimbabwe. Cecil was resident of the Hwange National Park, where he was a star attraction to many visitors and part of a national study on lion movement across the park that had begun in 2008. Mid-2015, Cecil was lured out of the (p.47) park by carcasses tied to a car driven by trophy hunters, and then shot with a bow and arrow by Walter Palmer, a US citizen who paid 50,000 USD to kill the animal. Cecil was severely wounded and killed by the hunters over 40 hours after the initial shot was released.207 After these events became public, Palmer was subject to “a global storm of internet indignation,” and “an online witch-hunt,” as journalists reported.208
Trophy hunting is a form of sports or recreational hunting, in which individuals hunt animals to take their head or other features with them for display. Typically, hunters target the rarest and biggest animals, or those that are hardest to chase and shoot. Trophy hunting is practiced in many states but has been subject to debates particularly in the United States. According to the Humane Society International’s report, “Trophy Hunting by Numbers,” the United States imported 1.26 million wildlife trophies between 2005 and 2014.209 Most trophies originated in Canada and South Africa; fewer came from Argentina, Botswana, Mexico, Namibia, New Zealand, Tanzania, and Zambia. Trophy hunters are known to pay large sums to kill wildlife animals. For an African lion trophy, for instance, they pay between 13,500 USD and 49,000 USD and for an African elephant between 11,000 USD and 70,000 USD. Among the animals hunted and imported during the same period, 32,500 were members of African Big Five: 5,600 African lions, 4,600 African elephants, 4,500 African leopards, 330 Southern white rhinos, and 17,200 African buffaloes.210 Although the United States has prohibited some of these trophy imports under the ESA,211 people continue to practice trophy hunting, among other things because trophy hunting remains legal in over 20 African countries while illicit trade in the United States continues unabated.212
Trophy hunting, in contrast to corporate outsourcing, is a form of exploitation of low animal laws abroad by individuals or groups of people. An issue that is structurally similar to trophy hunting is using another state’s low animal protection standards to commit acts of bestiality. Consider Denmark, a country that legally ran animal brothels for years. According to journalists, zoophilia was not only practiced among Danish nationals, but Denmark became internationally known as “a hotspot for animal sex tourists,”213 where “foreigners visit the country specifically to go to [. . .] brothels that sexually exploit animals.”214 A 2006 report issued by the Danish Ethical Council revealed that 17 percent of the Danish veterinarians (p.48) suspected an animal they treated had been subjected to sex with a human.215 In April 2015, Denmark finally banned sexual intercourse and other sexual relations with animals by amending its Animal Protection Act.216 Denmark’s efforts are laudable but continue to be undermined until this day because sexual interactions with animals—violent or not—are still legal in neighboring countries including Finland, Hungary, and Romania.
§6 Interim Conclusion
Mapping the territory of animal law means assembling the tools necessary to begin a careful study of extraterritorial jurisdiction in animal law. Both jurisdiction and extraterritoriality have suffered from terminological deficiencies that have hampered the legal debate on the legality of extraterritorial jurisdiction. In this chapter, I built up a definitional structure that allows us to approach these charged terms systematically and impartially. States enjoy two types of jurisdictional authority—regulatory and enforcement authority—that are tied to different consequences under international law. When the sphere in which persons, things, and legal relationships subject to regulation are situated (the sphere of regulation) began to exceed the sphere in which law can be autonomously enforced by a state (the sphere of validity), the limits of the prescriptive jurisdiction of states lost congruence with the limits of their enforcement jurisdiction. As a result, international law introduced two sets of rules that apply to prescriptive and enforcement jurisdiction, respectively. Enforcement jurisdiction is in principle limited to a state’s own territory, based on the principles of territorial integrity and nonintervention. Even when enforcement in a foreign state is precluded, states opt for extraterritorial prescriptive jurisdiction because they presume compliance with their laws. A common way of ensuring cross-border compliance is to use territorial enforcement that forces addressees of a norm to determine how cost-effective the available options are, and to find, eventually, that the potential negative effects of not complying with foreign law will be worse than the positive effects of ignoring it.
Contemporary voices on sovereignty converge on the idea that states have often failed to effectively organize economic, social, and political life along territorial boundaries. Sovereignty has evolved from a concept associated with state independence to one characterized by state interdependence, from bundling sovereignty in the ruler to justifying sovereignty with reference to the people, and from accentuating territorial supremacy to celebrating global legal pluralism. These developments are part and parcel of the broader deterritorialization of state sovereignty and have had a noticeable effect on how jurisdictional space is perceived and (p.49) regulated. Deterritorializing state sovereignty has eroded the primacy of the territoriality principle, which declares the home state competent to prescribe law over all matters relating to that territory. As territorial jurisdiction dwindled, states began to invoke jurisdictional bases that derive from the two other pillars of state sovereignty: personal and organizational sovereignty. The nationality, effects, protective, and universality principles—all of which emerged from personal and organizational sovereignty—gradually supplanted territorial jurisdiction and came to be seen as bases of jurisdiction that successfully respond to transnational problems.
Despite the growing popularity of extraterritorial jurisdiction, legal scholarship has not yet managed to readily distinguish between territorial and extraterritorial jurisdiction. Customary international law and scholarly opinions on the concept of extraterritorial jurisdiction have thus far failed to provide a satisfactory definition of the terms, which exacerbated the debate about the legality of extraterritorial jurisdiction. The extraterritoriality framework established in this chapter attempts to fill this gap. It enables us to disassemble norms into discrete parts, from which we can determine their geographical locus. The starting point for defining extraterritorial jurisdiction is the basic structure of a jurisdictional norm. A norm uses one or more anchor points to regulate content, which can have manifold ancillary repercussions. By adding territorial considerations to the structure, it is possible to distinguish norms with (extra)territorial anchor points, (extra)territorial content regulation, and (extra)territorial ancillary repercussions. To be regarded as extraterritorial jurisdiction stricto sensu, jurisdictional norms must have an extraterritorial anchor point and extraterritorial content regulation (type α jurisdiction), an extraterritorial anchor point and intraterritorial content regulation (type ß jurisdiction), or an intraterritorial anchor point and extraterritorial content regulation (type γ jurisdiction). The personality, protective, effects, and objective and subjective territoriality principles are all forms of direct extraterritorial jurisdiction because they use extraterritorial anchor points or regulate content extraterritorially. The definition of extraterritorial jurisdiction stricto sensu, or direct extraterritoriality, uses the sphere of states’ regulatory influence as a guiding tool and ignores unintended effects of norms. Adding the dimension of animal relation—where animals form part of jurisdictional norms as anchor points or regulated content—to the jurisdictional types in the extraterritoriality framework gives rise to a new set of considerations needed to disassemble norms (types α1, α2, α3, ß1, ß2, γ1, and γ2 jurisdiction).
If a norm’s only extraterritorial facet is its extraterritorial repercussions, the norm is not considered extraterritorial stricto sensu, but instead is a territorial norm with indirect extraterritorial effects. Trade measures are typically indirect extraterritorial because they do not claim application or validity outside the state that passed the laws. Although they do not form part of extraterritorial jurisdiction stricto sensu, trade restrictions are examined in later chapters because they represent a popular instrument of states and are frequently accused of unduly challenging the regulatory authority of states.
The extraterritoriality framework is first and foremost a definitional tool and a tool for conducting empirical studies on the jurisdictional practices of states. As such, the framework does not claim or even allow an assessment of the legality of a jurisdictional norm, be it direct or indirect extraterritorial. The framework does, however, force us to abandon the oversimplified, conceptually problematic, and politically charged dichotomy between legal territorial and illegal extraterritorial jurisdiction. Extraterritoriality does not (p.50) denote unlawful jurisdiction and vice versa, territoriality is not synonymous with lawful jurisdiction.
From a legal standpoint, animal law evidences a high degree of otherness that mandates careful scrutiny of the jurisdictional axioms applicable and potentially inapplicable to the field. Animal law is unique in four respects. First, most animal welfare or protection acts do not determine, much less address their territorial scope. Second, different jurisdictional limits may apply depending on whether we are dealing with civil, criminal, or public norms of animal law. Third, because animals are increasingly recognized as sentient beings under the law, rather than as mere objects, this throws into question the jurisdictional parameters used to date. Finally, the complex and often conflicting interests in using or protecting animals make it difficult to settle jurisdictional disputes promptly. All of these factors call into question the law of jurisdiction in its traditional form and require us to be vigilant when using extraterritorial norms in animal law.
These points of reference of the law of jurisdiction can be very technical, and it can be hard to see their practical applications. In this chapter, I developed four case groups that add plasticity to the extraterritoriality framework, and that will help us verify its legal propositions: corporate exploitation of low animal protection standards abroad (i.e., outsourcing), trade in animals and animal products, animal migration, and exploitation of weak animal laws abroad by individuals (e.g., trophy hunting or bestiality). As we inquire into the law of jurisdiction in the coming chapters, I will use these four case groups as a speculum to examine the feasibility and adequacy of existing laws and proposals made to remedy their shortcomings.
(1) MENG 4 (1994); Anne Peters, Humanity as the A and Ω of Sovereignty, 20 EJIL 513, 515, n. 4 (2009).
(2) Charter of the United Nations, Oct. 24, 1945, 1 U.N.T.S. 16, art. 25 [UN Charter].
(3) Statute of the International Court of Justice, June 26, 1945, 33 U.N.T.S. 993, arts. 36, 37, and 53 para. 2 [ICJ Statute].
(4) Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, art. 1 [Rome Statute].
(5) Special tribunals include, among others, those created by the United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3, art. 188 ff. [UNCLOS]; S.C. Res. 827, U.N. SCOR 48th Sess., on Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, U.N. Doc. S/RES/827 (May 25, 1993); S.C. Res. 955, U.N. SCOR 49th Sess., On Establishment of an International Tribunal and Adoption of the Statute of the Tribunal, U.N. Doc. S/RES/955 (Nov. 8, 1994).
(6) Achilles Skordas, Supranational Law, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW [MPEPIL] 2 (Rüdiger Wolfrum ed., online ed. 2014) (emphasis in original).
(7) Moreover, the reserved domain may shrink as international law incrementally expands because “[t]he question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations” (Nationality Decrees in Tunis and Morocco, Advisory Opinion, Judgment, 1923 P.C.I.J. (ser. B) No. 4, at 24 (Feb. 7) [Nationality Decrees, 1923 P.C.I.J.]).
(8) Mitsue Inazumi, UNIVERSAL JURISDICTION IN MODERN INTERNATIONAL LAW: EXPANSION OF NATIONAL JURISDICTION FOR PROSECUTING SERIOUS CRIMES UNDER INTERNATIONAL LAW 17 (2005); Vaughan Lowe, INTERNATIONAL LAW 171 (2007).
(9) IBA REPORT EXTRATERRITORIAL JURISDICTION 17–8 (2009); Alexander Orakhelashvili, AKEHURST’S MODERN INTRODUCTION TO INTERNATIONAL LAW 214 (8th ed. 2019). Jurisdiction to prescribe law is thus not mandatory, but permissive: Roger O’Keefe, Universal Jurisdiction: Clarifying the Basic Concept, 2 J. INT’L CRIM. JUST. 735, 738, n.12 (2004); MENG 458 (1994).
(10) Martin Dixon, TEXTBOOK ON INTERNATIONAL LAW 151 (7th ed. 2013); Alex Mills, THE CONFLUENCE OF PUBLIC AND PRIVATE INTERNATIONAL LAW 24, 125, 164, 207 (2009); U.S. Restatement (Fourth) of the Foreign Relations Law, §402, cmt. d; American Law Institute, Restatement (Second) of Conflict of Laws of the United States, §2, cmt. d (1971) [U.S. Restatement (Second) of Conflict of Laws].
(11) Case Concerning the Payment of Various Serbian Loans Issued in France (Fr. v. Kingdom of Serbs, Croats and Slovenes), 1929 P.C.I.J. (ser. A) No. 20/21, at 41 (July 12) [Serbian Loans, 1929 P.C.I.J.]; MENG 189 (1994); Clive Parry ET AL., ENCYCLOPAEDIC DICTIONARY OF INTERNATIONAL LAW 481 (3d ed. 2009) “private international law”; RYNGAERT, JURISDICTION 18 (2015).
(12) Angus Johnston & Edward Powles, The Kings of the World and Their Dukes’ Dilemma: Globalisation, Jurisdiction and the Rule of Law, in GLOBALISATION AND JURISDICTION 13, 13 ff. (Piet Jan Slot & Mielle Bulterman eds., 2004); Elihu Lauterpacht ED., INTERNATIONAL LAW: COLLECTED PAPERS OF HERSCH LAUTERPACHT, vol. I, 38 (1970); Frederick A. Mann, The Doctrine of International Jurisdiction Revisited after Twenty Years, 186 RCADI 9, 21, 31 (1984); MENG 165 (1994); Patrick Wautelet, What Has International Private Law Achieved in Meeting the Challenges Posed by Globalisation?, in GLOBALISATION AND JURISDICTION 55, 57 (2004). Contra Michael Akehurst, Jurisdiction in International Law, 46 BYIL 145, 187 (1972–3). Mills argues that international norms create the structure of private international law by limiting states’ regulatory authority, but gives them discretion in exercising authority, which renders private international law a set of hybrid rules: MILLS 296 (2009).
(13) E.g., Council Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, 2000 O.J. (L 12) 1; Regulation 593/2008 of the European Parliament and of the Council on the Law Applicable to Contractual Obligations (Rome I), 2008 O.J. (L 177) 6.
(14) McDonald v. Mabee, 243 U.S. 90, 91 (1917) (U.S.).
(15) E.g., Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment, 2002 I.C.J. Rep. 59, 60 (Feb. 14) (Separate Opinion of Judge Koroma) [Arrest Warrant, 2002 I.C.J.].
(16) E.g., Johnston & Powles, The Kings of the World and Their Dukes’ Dilemma, in GLOBALISATION AND JURISDICTION 25 (2004).
(17) E.g., Derek W. Bowett, Jurisdiction: Changing Patterns of Authority over Activities and Resources, 53 BYIL 1, 1 (1982).
(18) E.g., James Crawford, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 456 (8th ed. 2012).
(19) E.g., Frederick A. Mann, The Doctrine of Jurisdiction in International Law, 111 RCADI 1, 9 (1964).
(20) The dichotomy between potentia and potestas was originally established by Spinoza: Jiří Přibáň, SOVEREIGNTY IN A POST-SOVEREIGNTY SOCIETY: A SYSTEMS THEORY OF EUROPEAN CONSTITUTIONALISM 54 (2015).
(21) CRAWFORD 448 (2012); DIXON 148 (2013); Rosalyn Higgins, PROBLEMS AND PROCESS, INTERNATIONAL LAW AND HOW WE USE IT 56 (1995); O’Keefe 736 (2004); Robert Jennings & Arthur Watts EDS., OPPENHEIM’S INTERNATIONAL LAW, vol. I, 457 (9th ed. 1992).
(22) U.S. Restatement (Fourth) of the Foreign Relations Law, § 401(c).
(25) This is because private international law includes all-sided rules of conflict that may point to the application of foreign or domestic law: Jürgen Schwarze, DIE JURISDIKTIONSABGRENZUNG IM VÖLKERRECHT 20 (1994).
(26) Hannah L. Buxbaum, Territory, Territoriality and the Resolution of Jurisdictional Conflict, 57 AJCL 631, 673 (2009). The principle of territorial enforcement jurisdiction was reinforced by the PCIJ in the Lotus case: “[T]he first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State” (S.S. Lotus (Fr. v. Turk.), Judgment, 1927 P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7) [Lotus, 1927 P.C.I.J.]).
(27) Prosper Weil, International Limitations on State Jurisdiction, in EXTRA-TERRITORIAL APPLICATION OF LAWS AND RESPONSES THERETO 32, 33 (Cecil J. Olmstead ed., 1984).
(28) These treaties may be multilateral, e.g., CoE, Convention on Mutual Assistance in Criminal Matters, Apr. 20, 1959, C.E.T.S. No. 30; CoE, Convention on Laundering of Search Seizure and Confiscation of the Proceeds from Crime, Nov. 8, 1990, C.E.T.S. No. 141, or bilateral, see e.g., Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, T.S. 418.
(29) Vienna Convention on Consular Relations, Apr. 24, 1963, 596 U.N.T.S. 261, art. 5 (consular functions) [VCCR].
(30) In other words, a state follows another state’s assistance request at its own discretion. When the requesting state’s jurisdiction conflicts with the requested state’s jurisdiction, it is unlikely the latter will follow the former’s request.
(31) Directorate-General for External Policies, Policy Department, The Extraterritorial Effects of Legislation and Policies in the EU and US, requested by the European Parliament’s Committee on Foreign Affairs 39 (European Union 2012).
(32) Translated from the German term “Persuasionswirkung” (MENG 113 (1994)). Himelfarb refers to the same process as a “geopsychological factor” (Allison J. Himelfarb, The International Language of Convergence: Reviving Antitrust Dialogue between the United States and the European Union with a Uniform Understanding of “Extraterritoriality,” 17 U. PA. J. INT’L ECON. L. 909, 918 n. 41 (1996)).
(33) Lotus, 1927 P.C.I.J. 19. See also INAZUMI 30–1 (2005).
(34) Mann, for instance, views the Lotus principle as “a most unfortunate and retrograde theory” (Mann 35 (1964)). He finds it “difficult to believe” that an international court would deny the pervasive influence of international law (Mann 32 (1984)). See, for a critique of the Lotus decision, Chapter 5, §1.
(35) Richard K. Gardiner, INTERNATIONAL LAW 311 (2003).
(36) Island of Palmas Case (U.S. v. Neth.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928) [Island of Palmas, 1928 R.I.A.A.]. Similarly, in The Schooner Exchange v. McFaddon, the US Supreme Court stated: “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. All exceptions, therefore, must be traced up to the consent of the nation itself.” (The Schooner Exchange v, McFaddon, 11 U.S. 116, 136 (1812) (U.S.)).
(38) Ram Narain v. The Central Bank of India Ltd., (1951) High Court of India, ILR 1951 Case No. 49 (India); Macleod v. A.G. for N.S.W.  AC 455 (U.K.); Slater v. Mexican Nat. R. Co., 194 U.S. 120 (1904) (U.S.).
(39) INAZUMI 33 (2005).
(40) Convention on Offences and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 704 U.N.T.S. 220 [Tokyo Convention]; Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 860 U.N.T.S. 105 [Hijacking Convention]; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Sept. 23, 1971, 974 U.N.T.S. 178 [Montreal Convention].
(42) IBA REPORT EXTRATERRITORIAL JURISDICTION 33 (2009).
(43) See for an examination of extraterritorial jurisdiction in labor law: Harry W. Arthurs, Extraterritoriality by Other Means: How Labor Law Sneaks Across Borders, Conquers Minds, and Controls Workplaces Abroad, 21 STAN. L. & POL. REV. 527 (2010); Harry Arthurs, Reinventing Labor Law for the Global Economy: The Benjamin Aaron Lecture, 22 BERKELEY J. EMP. & LAB. L. 271 (2001); Yifeng Chen, ILO, Extraterritoriality and Labor Protection in Republican Shanghai, in FUNDAMENTAL LABOR RIGHTS IN CHINA: LEGAL IMPLEMENTATION AND CULTURAL LOGIC 83 (Ulla Liukkunen & Yifeng Chen eds., 2016). See for extraterritorial jurisdiction in animal law: George Cameron Coggins & John W. Head, Beyond Defenders: Future Problems of Extraterritoriality and Superterritoriality for the Endangered Species Act, 43 WASH. U. J. URB. & CONTEMP. L. 59 (1993); Asif H. Qureshi, Extraterritorial Shrimps, NGOs and the WTO Appellate Body, 48 ICLQ 199 (1999); Sands 529 (2001); Mitsuhiko A. Takahashi, Okinawa Dugong v. Rumsfeld: Extraterritorial Operation of the U.S. Military and Wildlife Protection under the National Historic Preservation Act, 28 ENVIRONS. ENVTL L. & POL’Y J. 181 (2004).
(44) MENG 10–3 (1994); Walter Rudolf, Territoriale Grenzen der staatlichen Rechtsetzung, 11 BERDGVÖR 7, 9–10 (1973).
(45) The same translation is used by Erich Vranes, TRADE AND THE ENVIRONMENT: FUNDAMENTAL ISSUES IN INTERNATIONAL LAW, WTO LAW, AND LEGAL THEORY 97 (2009).
(46) Vranes calls this the “area of application” (VRANES 97 (2009)).
(47) Walter Rudolf, Territoriale Grenzen der staatlichen Rechtsetzung, in REFERATE UND DISKUSSION DER 12. TAGUNG DER DEUTSCHEN GESELLSCHAFT FÜR VÖLKERRECHT IN BAD GODESBERG VOM 14. BIS 16. JUNI 1971 33 (Walther J. Habscheid & Walter Rudolf eds., 1973).
(48) PETERS, VÖLKERRECHT 15 (2016). See also Anne Peters, Privatisierung, Globalisierung und die Resistenz des Verfassungsstaates, in STAATS- UND VERFASSUNGSTHEORIE IM SPANNUNGSFELD DER DISZIPLINEN 100, 100 ff. (Philippe Mastronardi & Denis Taubert eds., 2006).
(49) Johnston & Powles, The Kings of the World and Their Dukes’ Dilemma, in GLOBALISATION AND JURISDICTION 14 (2004). Strange’s description vividly exemplifies the rise of communication technology: “It took hundreds—in some places, thousands—of years to domesticate animals so that horses could be used for transport and oxen [. . .] could be used to replace manpower to plough and sow ground for the production of crops in agriculture. It has taken less than 100 years for the car and truck to replace the horse and for aircraft to partly take over from road and rail transport. The electric telegraph as a means of communication was invented in the 1840s and remained the dominant system in Europe until the 1920s. But in the next eighty years, the telegraph gave way to the telephone, the telephone gave way to radio, radio to television and cables to satellites and optic fibres linking computers to other computers” (SUSAN STRANGE, THE RETREAT OF THE STATE 7 (1996)).
(50) Wenhua Shan ET AL. EDS., REDEFINING SOVEREIGNTY IN INTERNATIONAL ECONOMIC LAW xiii (Wenhua Shan, Penelope Simons, & Dalvinder Singh eds., 2008).
(51) The SEA was the first major amendment of the Treaty establishing the European Economic Community (EEC): European Union, Consolidated Version of Treaty on European Union, Treaty of Maastricht, 1991 O.J. (C 191) 1 [TEU].
(52) North American Free Trade Agreement, Dec. 17, 1992, 32 I.L.M. 289 (1993) [NAFTA].
(53) John H. Jackson, Sovereignty: Outdated Concept or New Approaches, in REDEFINING SOVEREIGNTY IN INTERNATIONAL ECONOMIC LAW 3, 6 (2008).
(54) John Stopford & Susan Strange, RIVAL STATES, RIVAL FIRMS: COMPETITION FOR WORLD MARKET SHARES 5 (1991); STRANGE 9 (1996).
(56) Jackson, Sovereignty: Outdated Concept or New Approaches, in REDEFINING SOVEREIGNTY IN INTERNATIONAL ECONOMIC LAW 24 (2008); Robert Howse, Sovereignty, Lost and Found, in REDEFINING SOVEREIGNTY IN INTERNATIONAL ECONOMIC LAW 61, 61 (2008); Edward Kwakwa, Regulating the International Economy: What Role for the State?, in THE ROLE OF LAW IN INTERNATIONAL POLITICS: ESSAYS IN INTERNATIONAL RELATIONS AND INTERNATIONAL LAW 227, 229 (Michael Byers ed., 2000); SHAN ET AL. xiii (2008); Anne-Marie Slaughter, The Real New World Order, 76 FOREIGN AFF. 189 (1997).
(57) Globalization and internationalization must be strictly distinguished. Rather than internationalizing the international legal order, globalization has shifted the focus away from state-centered issues to transnational ones: Christine Kaufmann, GLOBALISATION AND LABOUR RIGHTS: THE CONFLICT BETWEEN CORE LABOUR RIGHTS AND INTERNATIONAL ECONOMIC LAW 6–7 (2007); James Turner Johnson, SOVEREIGNTY: MORAL AND HISTORICAL PERSPECTIVES 117 ff. (2014).
(58) Samantha Besson, Sovereignty, in MPEPIL 4 (Rüdiger Wolfrum ed., online ed. 2011); Jean L. Cohen, GLOBALIZATION AND SOVEREIGNTY: RETHINKING LEGALITY, LEGITIMACY, AND CONSTITUTIONALISM 4 (2012); Shaunnagh Dorsett & Shaun McVeigh, JURISDICTION 41 (2012) (“claims of the end of sovereignty [. . .] seem premature”); Flavio G.I. Inocencio, RECONCEPTUALIZING SOVEREIGNTY IN THE POST-NATIONAL STATE: STATEHOOD ATTRIBUTES IN THE INTERNATIONAL ORDER: THE FEDERAL TRADITION 197 (2014); Kate Seaman, UN-TIED NATIONS: THE UNITED NATIONS, PEACEKEEPING AND GLOBAL GOVERNENCE 112, 120 (2014); Margaret A. Young, Fragmentation, Regime Interaction and Sovereignty, in SOVEREIGNTY, STATEHOOD AND STATE RESPONSIBILITY: ESSAYS IN HONOUR OF JAMES CRAWFORD 71, 86, 89 (Christine Chinkin & Freya Baetens eds., 2015).
(59) Zaki Laïda, BRICS: Sovereignty Power and Weakness, 49 INT’L POL. 614, 614 (2012): “The BRICS form a coalition of sovereign state defenders. [ . . . T]hey are concerned with maintaining their independence of judgment and national action in a world that is increasingly economically and socially interdependent. They consider that state sovereignty trumps all, including, of course, the political nature of its underpinning regimes.”
(60) Suzanne E. Gordon, CHANGING CONCEPTS OF SOVEREIGNTY AND JURISDICTION IN THE GLOBAL ECONOMY: IS THERE A TERRITORIAL CONNECTION? (The Canadian Centre for German and European Studies/Le Centre canadien d’études allemandes et européennes 2 (CCGES/CCEAE), Working Paper Series Number 1, 2001). MacMillan and Linklater suggest that the new economy, which cuts across national boundaries, erodes the significance of territory and the territorial character of conceptions about sovereignty: John MacMillan & Andrew Linklater EDS., BOUNDARIES IN QUESTION: NEW DIRECTIONS IN INTERNATIONAL RELATIONS (1995). See also Simon Caney, JUSTICE BEYOND BORDERS: A GLOBAL POLITICAL THEORY 150 (2005); John G. Ruggie, Territoriality and Beyond: Problematizing Modernity in International Relations, 47 INT’L ORG. 139 (1993).
(61) GORDON 12 (2001); Jackson, Sovereignty: Outdated Concept or New Approaches, in REDEFINING SOVEREIGNTY IN INTERNATIONAL ECONOMIC LAW 6 (2008).
(63) From this follows that “[. . .] conflicts between state sovereignty and human rights should not be approached in a balancing process in which the former is played off against the latter on an equal footing, but should be tackled on the basis of a presumption in favour of humanity.” (Peters, Humanity as the A and Ω of Sovereignty 514 (2009)). Hobe calls this “enlightened sovereignty” (Stephan Hobe, Globalisation: A Challenge to the Nation State and to International Law, in TRANSNATIONAL LEGAL PROCESSES: GLOBALISATION AND POWER DISPARITIES 378, 388 (Michael Likosky ed., 2002)). Dederer calls it “functional sovereignty” because the function of sovereignty is to establish state responsibility: (Hans-Georg Dederer, “Responsibility to Protect’ and ‘Functional Sovereignty,” in RESPONSIBILITY TO PROTECT (R2P): A NEW PARADIGM OF INTERNATIONAL LAW?, 156, 157 (Peter Hilpold ed., 2015)). See also COHEN 180 ff. (2012); TURNER JOHNSON 137 ff. (2014).
(64) UDHR, art. 21 para. 3.
(65) Howse, Sovereignty, Lost and Found, in REDEFINING SOVEREIGNTY IN INTERNATIONAL ECONOMIC LAW 64 (2008).
(66) Alexander B. Murphy, The Sovereign State System as Political-Territorial Ideal: Historical and Contemporary Considerations, in STATE SOVEREIGNTY AS A SOCIAL CONSTRUCT 81, 84 (Thomas J. Biersteker & Cynthia Weber eds., 1996).
(67) Aoileann Ní Mhurchú, Citizenship beyond State Sovereignty, in ROUTLEDGE HANDBOOK OF GLOBAL CITIZENSHIP STUDIES 119, 120 (Engin F. Isin & Peter Nyers eds., 2014).
(68) Paul Schiff Berman, GLOBAL LEGAL PLURALISM: A JURISPRUDENCE OF LAW BEYOND BORDERS (2012); COHEN 58 ff. (2012); Martti Koskenniemi, THE POLITICS OF INTERNATIONAL LAW 228–9 (2011); Ralf Michaels, Global Legal Pluralism, 5 ANN. REV. L. & SOC. SCI. 243 (2009). The mechanism of multilayered governance is also called “Althusian” (INOCENCIO 196 (2014)).
(69) Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 204 (7th ed. 2008). In the words of the PCIJ in Lotus, a state’s “title to exercise jurisdiction rests in its sovereignty” (Lotus, 1927 P.C.I.J. 19). See also Lotus, 1927 P.C.I.J. 305 (Dissenting Opinion by Altamira, M.): “Of course, every sovereign State may by virtue of its sovereignty legislate as it wishes within the limits of its own territory” (emphasis added).
(70) Harold G. Maier, Jurisdictional Rules in Customary International Law, in EXTRATERRITORIAL JURISDICTION IN THEORY AND PRACTICE 64, Comment by Andrea Bianchi 84 (Karl M. Meessen ed., 1996).
(71) Robert Jennings, Extraterritorial Jurisdiction and the United States Antitrust Laws, 33 BYIL 146, 149 (1957).
(72) Buxbaum, Territory, Territoriality and the Resolution of Jurisdictional Conflict 674–5 (2009); ABDELHAMID EL OUALI, TERRITORIAL INTEGRITY IN A GLOBALIZING WORLD, INTERNATIONAL LAW AND STATES’ QUEST FOR SURVIVAL 92 (2012); Kal Raustiala, The Evolution of Territoriality: International Relations and American Law, in TERRITORIALITY AND CONFLICT IN AN AGE OF GLOBALIZATION 219, 219 (Miles Kahler & Barbara Walter eds., 2006).
(74) Maier, Jurisdictional Rules in Customary International Law, in EXTRATERRITORIAL JURISDICTION IN THEORY AND PRACTICE 68 (1996).
(75) Arrest Warrant, 2002 I.C.J. 35, 44 (Separate Opinion of President Guillaume).
(76) See also Benedict Kingsbury, Sovereignty and Inequality, 9 EJIL 599, 615 (1998).
(77) Rutsel Silvestre J. Martha, Extraterritorial Taxation in International Law, in EXTRATERRITORIAL JURISDICTION IN THEORY AND PRACTICE 19, 23 (1996); MENG 46 (1994); RYNGAERT, JURISDICTION 39 (2015).
(78) Alien Tort Claims Act 28 U.S.C. § 1350 (U.S.) [ATCA].
(79) Regulation 648/2012 of the European Parliament and of the Council on OTC Derivatives, Central Counterparties and Trade Repositories, 2012 O.J. (L 201) 1, at 23.
(80) Zerk, EXTRATERRITORIAL JURISDICTION 5 (2010). Also Buxbaum, Territory, Territoriality and the Resolution of Jurisdictional Conflict 634 (2009).
(81) Arrest Warrant, 2002 I.C.J. 63, 76 (Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal).
(82) Mark Gibney, On Terminology: Extraterritorial Obligations, in GLOBAL JUSTICE, STATE DUTIES: THE EXTRATERRITORIAL SCOPE OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN INTERNATIONAL LAW 32, 40 (Malcolm Langford et al. eds., 2013).
(83) Maier, Jurisdictional Rules in Customary International Law, in EXTRATERRITORIAL JURISDICTION IN THEORY AND PRACTICE 76 (1996).
(84) Andrew T. Guzman, Is International Antitrust Possible?, 73 N.Y.U. L. REV. 1501, 1506 (1998).
(85) Andreas F. Lowenfeld, International Litigation and the Quest for Reasonableness, 245 RCADI 9, 43–4 (1994).
(86) Gunther Handl, Extra-territoriality and Transnational Legal Authority, in BEYOND TERRITORIALITY: TRANSNATIONAL LEGAL AUTHORITY IN AN AGE OF GLOBALIZATION 3, 4 (Gunther Handl & Joachim Zekoll eds., 2012); Kal Raustialia, Empire and Extraterritoriality in Twentieth Century America, 40 SW. L. REV. 604 (2011).
(88) Island of Palmas, 1928 R.I.A.A. 838-9. Or, as Khan says, without frontiers or natural barriers, “[l]and as such is no territory” (Daniel-Erasmus Khan, Territory and Boundaries, in THE OXFORD HANDBOOK OF THE HISTORY OF INTERNATIONAL LAW 225, 231 (Bardo Fassbender & Anne Peters eds., 2012)).
(89) Higgins, PROBLEMS AND PROCESS 74 (1995); Ryngaert, JURISDICTION 7 (2015).
(90) See also Ryngaert, JURISDICTION 7 (2015).
(91) Arrest Warrant, 2002 I.C.J. 63, 76, ¶ 42 (Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal).
(92) Scholars other than Meng and Rudolf have proposed ways to define extraterritorial jurisdiction. Vranes distinguishes between unilateral or multilateral creation of norms, the regulation of domestic or foreign conduct, and the pursuance of territorial or extraterritorial concerns (VRANES 174 ff. (2009)). Vranes’ distinction of norms/regulation/pursuance of concerns is almost the same as the anchor point/content regulation/ancillary repercussion distinction I apply. Scott has conceptualized extraterritorial laws, differentiating between so-called extraterritorial laws and territorial extensions. Extraterritorial laws translate into “[t]he application of a measure triggered by something other than a territorial connection with the regulating state.” Territorial extensions, by contrast, occur where “[t]he application of a measure is triggered by a territorial connection but in applying the measure the regulator is required, as a matter of law, to take into account conduct or circumstances abroad.” See Scott 90 (2014). But Scott’s conceptualization fails to determine which factors should be territorial and which not, so it is not specific enough to address the prevailing problems of extraterritorial jurisdiction.
(93) MENG 74–5 (1994).
(94) STRAFGESETZBUCH [STGB] [CRIMINAL CODE], Nov. 13, 1998, BGBl. I at 3322, art. 5 para. 8 (Ger.).
(95) On pet passports, see, e.g., European Commission, DG Health and Consumers, Animal Health and Welfare, Movements of Pets, Pet Passports, available at http://ec.europa.eu/food/animal/liveanimals/pets/qanda_en.htm (last visited Jan. 10, 2019).
(96) MENG 5, 75 (1994).
(97) 刑法 KEIHŌ [PENAL CODE], Act No. 45 of 1907, art. 3-2 (Japan) [KEIHŌ [PENAL CODE] (Japan)], translation at http://www.cas.go.jp/jp/seisaku/hourei/data/PC.pdf.
(98) Early animal protection laws protected only the interests of people owning animals, whereas contemporary anti-cruelty laws criminalize acts against animals regardless of ownership: Bruce A. Wagman & Matthew Liebman, A WORLDVIEW OF ANIMAL LAW 148–9 (2011).
(99) Farm Animal Welfare Council (FAWC), THE FIVE FREEDOMS (FAWC, Surbiton 1992).
(101) See, e.g., Human Rights Council, 17th Sess., Special Representative of the Secretary-General John Ruggie, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, U.N. Doc. A/HRC/17/31, 7 (Mar. 21, 2011) [Guiding Principles on Business and Human Rights].
(102) John G. Ruggie, UN SRSG for Business & Human Rights, Keynote Presentation at EU Presidency Conference on the “Protect, Respect and Remedy” Framework Stockholm, Nov. 10–11, 2009; Zerk, EXTRATERRITORIAL JURISDICTION 13 (2010).
(103) MENG 76 (1994).
(104) The phrase “animal turn” was coined by Sarah Franklin at the Cultural Studies Association of Australasia in 2003: Helena Pedersen, Knowledge Production in the “Animal Turn”: Multiplying the Image of Thought, Empathy, and Justice, in EXPLORING THE ANIMAL TURN: HUMAN-ANIMAL RELATIONS IN SCIENCE, SOCIETY AND CULTURE 13, 13 (Erika Andersson Cederholm et al. eds., 2014). See also Harriet Ritvo, On the Animal Turn, 136 DAEDALUS 118 (2007).
(105) Julia Cresswell, THE OXFORD DICTIONARY OF WORD ORIGINS 16 (2d ed. 2010).
(106) CRESSWELL 16 (2010).
(107) The term “animal” thus includes all living beings that are not part of the zoological kingdom of plants, mushrooms, blue algae, and other microorganisms. Elizabeth Martina & Robert Hine, A DICTIONARY OF BIOLOGY (2014) (“animal”). See also Rita Jedelhauser, DAS TIER UNTER DEM SCHUTZ DES RECHTS: DIE TIERETHISCHEN GRUNDLAGEN EINES RECHTLICHEN SCHUTZMODELLS FÜR DAS TIERSCHUTZRECHTLICHE VERWALTUNGSHANDELN 13 (2011).
(109) Seminal: Charles Darwin, ON THE ORIGIN OF SPECIES BY MEANS OF NATURAL SELECTION, OR THE PRESERVATION OF FAVOURED RACES IN THE STRUGGLES FOR LIKE (1859); Charles Darwin, THE DESCENT OF MAN, AND SELECTION IN RELATION TO SEX (1871).
(110) Tilikum v. SeaWorld Parks & Ent., Inc., 842 F. Supp. 2d 1259, 1261 (S.D. Cal. 2012) (U.S.). The court held: “The Amendment’s language and meaning is clear, concise, and not subject to the vagaries of conceptual interpretation—‘Neither slavery nor involuntary servitude [. . .] shall exist within the United States or any place subject to their jurisdiction.’ As ‘slavery’ and ‘involuntary servitude’ are uniquely human activities, as those terms have been historically and contemporaneously applied, there is simply no basis to construe the Thirteenth Amendment as applying to non-humans.” (Id. at 6). See for a useful discussion of the case: Jeffrey S. Kerr et al., A Slave by Any Other Name Is still a Slave: The Tilikum Case and Application of the Thirteenth Amendment to Nonhuman Animals, 19 ANIMAL L. 221 (2013).
(111) See, e.g., Arran Stribbe, ANIMAL ERASED: DISCOURSE, ECOLOGY, AND RECONNECTION WITH THE NATURAL WORLD (2012), stating: “Non-speciesist language guidelines are receiving a similar treatment. Lists of pseudo ‘politically correct’ terms related to animals have started appearing on a number of humerous websites.” See also Michael Tooley, Are Nonhuman Animals Persons?, in THE OXFORD HANDBOOK OF ANIMAL ETHICS 332 (Tom L. Beauchamp & R.G. Frey eds., 2011).
(112) Andreas Rüttimann, Tierschutzbewegung, in LEXIKON DER MENSCH-TIER-BEZIEHUNGEN 371, 372 (Arianna Ferrari & Klaus Petrus eds., 2015).
(113) Animal welfare started as a formal discipline with the Brambell report on the welfare of farmed animals, issued by the British Government in 1965 (Report of the Technical Committee to Enquire into the Welfare of Animals Kept under Intensive Livestock Husbandry Systems, Her Majesty’s Stationery Office, London 1965): David Fraser, Animal Ethics and Animal Welfare Science: Bridging Two Cultures, 65 APPL. ANIM. BEHAV. SCI. 171 (1999) (clarifying the interplay of normative and empirical elements in the assessment of animal welfare).
(114) OIE, TERRESTRIAL ANIMAL HEALTH CODE, art. 7.1.1 (OIE, Paris 2018) (emphasis omitted). See for a discussion, Barry Bousfield & Richard Brown, What Is Animal Welfare?, 1 ANIMAL WELFARE 1, 1 (2010), noting that animal welfare ensures that an animal’s physical and mental state and their ability to fulfill their natural needs and desires are considered, and that animals are not treated cruelly, or subjected to unnecessary pain or suffering.
(115) Gieri Bolliger, MICHELLE RICHNER, & ANDREAS RÜTTIMANN, SCHWEIZER TIERSCHUTZSTRAFRECHT IN THEORIE UND PRAXIS 23 (2011).
(117) See generally on this debate Sue Donaldson & Will Kymlicka, ZOOPOLIS: A POLITICAL THEORY OF ANIMAL RIGHTS 73 ff. (2011); Sabine Lennkh, DIE KODIFIKATION DES TIERSCHUTZRECHTS, MODELLVORSTELLUNGEN 28 ff. (2012); Bernard E. Rollin, ANIMAL RIGHTS AND HUMAN MORALITY (3d ed. 2006); Paul Waldau, ANIMAL RIGHTS: WHAT EVERYONE NEEDS TO KNOW (2011); Steven M. Wise, DRAWING THE LINE: SCIENCE AND THE CASE FOR ANIMAL RIGHTS (2013).
(118) See Gary Francione, ANIMALS, PROPERTY, AND THE LAW 18 (2007): “I refer to the current regulatory structure in this country as it pertains to animals as legal welfarism, or the notion, represented by and in various legal doctrines, that animals, which are the property of people, may be treated solely as means to ends by humans as long as this exploitation does not result in the infliction of ‘unnecessary’ pain, suffering or death.” (Emphasis in original).
(119) E.g., Steven M. Wise, RATTLING THE CAGE: TOWARD LEGAL RIGHTS FOR ANIMALS 53 ff. (2000).
(120) From the legal perspective of the status quo, attempts to distinguish protections and rights might be overstated: Joan E. Schaffner, AN INTRODUCTION TO ANIMALS AND THE LAW 171 (2011).
(121) BUNDESGESETZ ÜBER VERSUCHE AN LEBENDEN TIEREN [TIERVERSUCHSGESETZ, TVG] [AUSTRIAN ANIMAL EXPERIMENTATION ACT], BGBl. I No. 114/2012, § 4(5)(a) (Austria), stating that experimentation with great apes is illegal in all cases (including gibbons). Animal Welfare Act, Public Act No. 142, Oct. 14, 1999 §§ 85 ff. (N.Z.) forbids use of nonhuman hominids in research, testing, or teaching without the Director-General’s approval, and only “in the interests of the species to which the non-human hominid belongs.” See also id. § 85(5)(a). For the other states, see Colin Goldner, LEBENSLÄNGLICH HINTER GITTERN: DIE WAHRHEIT ÜBER GORILLA, ORANG UTAN & CO IN DEUTSCHEN ZOOS (2014); Carl Saucier-Bouffard, The Legal Rights for Great Apes, in THE GLOBAL GUIDE TO ANIMAL PROTECTION 235, 235 (2013); WAGMAN & LIEBMAN 190 (2011).
(122) This list, though not comprehensive, is representative of a host of states that have adopted animal welfare or animal protection acts.
(123) LEY NACIONAL 14.346 DE PROTECCIÓN ANIMAL, Sancionada en el Congreso Nacional el 27/9/54, Incluida en el Codigo Penal, Dec. 27, 1954 [Law No. 14.346, ANIMAL WELFARE CODE] (Arg.) [ANIMAL WELFARE CODE (Arg.)].
(124) Animal Welfare Act 1992 (ACT) (Austl.); Prevention of Cruelty to Animals Act 1979, Act No. 200 (NSW) (Austl.); Animal Welfare Act (NT) (Austl.); Animal Care and Protection Act 2001 (Qld) (Austl.); Animal Welfare Act 1985 (SA) (Austl.); Animal Welfare Act, Act No. 63 (Tas) (Austl.); Prevention of Cruelty to Animals Act 1986 (Vic) (Austl.); Animal Welfare Act 2002 (WA) (Austl.).
(125) TIERSCHUTZGESETZ [TSCHG] [ ANIMAL PROTECTION ACT], BGBl. I No. 118/2004 (Austria) [ANIMAL PROTECTION ACT (Austria)].
(126) LOI RELATIVE À LA PROTECTION ET AU BIEN-ÊTRE DES ANIMAUX [ANIMAL PROTECTION ACT], No. 1986016195, MONITEUR BELGE [M.B.] [Official Gazette of Belgium] 16382, Aug. 14, 1986 (Belg.) [ANIMAL PROTECTION ACT (Belg.)].
(127) Cruelty to Animals Act, Cap. 37:02, May 8, 1936, consolidated version of the Proclamation 27 of 1936 as of Dec. 31, 2008 (Bots.) [Cruelty to Animals Act (Bots.)].
(128) Decreto Lei Nº 24.645, de 10 de Julho de 1934 [Federal Decree on Anti-Cruelty Nº 24.645], July 10, 1934 (Braz.) [Federal Decree on Antri-Cruelty (Braz.)].
(129) Zakon za Zashtita na Zhivotnite [Law on the Protection of Animals] of Jan. 31, 2008, DURZHAVEN VESTNIK [D.V.] [State Gazette], Feb. 8, 2008 (Bulg.) [Animal Protection Act (Bulg.)].
(130) Criminal Code, c. C-46, 1985, §§ 444 ff. (Can.) [Criminal Code (Can.)].
(131) Decreta Ley de Bienestar de los Animales [Decree on the Well-being of Animals], No. 7451, June 20, 2012, (Costa Rica) [Decree on the Well-being of Animals (Costa Rica)].
(132) Zakon o zaštiti životinja [Animal Protection Act], No. 71-05-03/1-06-2, Dec. 7, 2006 (Croat.) [Animal Protection Act (Croat.)].
(133) Lomakaitseseadus [Animal Protection Act] Dec. 13, 2000, RIIGI TEATAJA [R.T.], I 2001, 3, 4 (Est.) [Animal Protection Act (Est.)].
(134) Council Directive 93/119/EC on the Protection of Animals at the Time of Slaughter or Killing, 1993 O.J. (L 340) 21; Council Regulation 1099/2009 on the Protection of Animals at the Time of Killing, 1993 O.J. (L 303) 1; Council Directive 1999/74 Laying Down Minimum Standards for the Protection of Laying Hens, 1999 O.J. (L 203) 53; Council Directive 1999/22 Relating to the Keeping of Wild Animals in Zoos, 1999 O.J. (L 94) 24; Commission Directive 2002/4 on the Registration of Establishments Keeping Laying Hens, 2002 O.J. (L 30) 44; Council Directive 98/58 Concerning the Protection of Animals Kept for Farming Purposes, 1998 O.J. (L 221) 23; Council Directive 2008/119 Laying Down Minimum Standards for the Protection of Calves, 2009 O.J. (L 10) 7; Council Directive 2008/120 Laying Down Minimum Standards for the Protection of Pigs, 2009 O.J. (L 47) 5; Regulation 1223/2009 of the European Parliament and of the Council on Cosmetic Products, 2009 O.J. (L 342) 59; Regulation 1007/2009 on Trade in Seal Products, 2009 O.J. (286) 36 [Regulation 1007/2009, 2009 O.J. (L 286) 36]; Directive 2010/63 of the European Parliament and the Council on the Protection of Animals Used for Scientific Purposes, 2010 O.J. (L 276) 33.
(135) Animals (Control of Experiments) Act, May 13, 1957, c. 161, by Ordinance No. 11 of 1957 (Fiji) [Animals (Control of Experiments) Act (Fiji)].
(136) Eläinsuojelulaki [Animal Welfare Act], 247/1996 (Fin.) [Animal Welfare Act (Fin.)].
(137) TIERSCHUTZGESETZ [TIERSCHG] [ANIMAL WELFARE ACT], May 18, 2006, BGBl. I, at 1206 (Ger.) [ANIMAL WELFARE ACT (Ger.)].
(138) Animal Experiments (Scientific Procedures) Act, Principal Act, No. 1999-03, Mar. 3, 1999 (Gibr.) [Animal Experiments Act (Gibr.)].
(139) Nomos (2012:4039) Gia Ta Deopozomena Kai Ta Adeopota Zōa Syntrophiaskai Tēn Zōōnapotē Ekmetalleysē ē Tē Chrēsimottoiēsē me Kerdookopikookotto [Law Concerning Domestic and Stray Companion Animals and the Protection of Animals from any Exploitation or Use for Economic Profit], EPHEMERIS TES KYVERNESEOS TES HELLENIKES DEMOKRATIAS [E.K.E.D.] 2012 (Greece) [Law No. 4039 (Greece)].
(140) Prevention of Cruelty to Animals Ordinance, (1997) Cap. 169, June 20, 1997, [L.N.] 331 of 1999 (Originally 44 of 1935 (Cap. 169 1950)) (H.K.) [Prevention of Cruelty to Animals Ordinance (H.K.)].
(141) Act on Animal Welfare, No. 55, Apr. 8, 2013 (Ice.) [Act on Animal Welfare (Ice.)].
(142) Cruelty to Animals Law (Animal Protection), Jan. 11, 1994, 5754-1994, Passed the Knesset 28 Tevet 5754 (Isr.) [Cruelty to Animals Law (Isr.)].
(143) の動物の愛護及び管理に関する法律 [ACT ON WELFARE AND MANAGEMENT OF ANIMALS], Law No. 105 of 1973 (Japan).
(144) Prevention of Cruelty to Animals Act, Cap. 360, 1983, [L.N.] 119/1984 (Kenya) [Prevention of Cruelty to Animals Act (Kenya)].
(145) Dzīvnieku aizsardzības likums [Animal Protection Law], Dec. 9, 1999, LATVIJAS VĒSTNESIS [LATVIAN HERALD], 444/445 (Lat.) [Animal Protection Law (Lat.)].
(146) TIERSCHUTZGESETZ [TSCHG] [ANIMAL WELFARE ACT], Sept. 23, 2010 (Liech.) [ANIMAL WELFARE ACT (Liech.)].
(147) Gyvūnų Gerovės ir Apsaugos Įstatymas [Law on Welfare and Protection of Animals], Oct. 3, 2012, No. XI-2271, VALSTYBĖS ŽINIOS [OFFICIAL GAZETTE], Oct. 20, 2012, No. 122-6216 (Lith.) [Law on Welfare and Protection of Animals (Lith.)].
(148) Animals Act, Apr. 30, 1953, LAWS OF MALAYSIA, Act 647, (Malay.) [Animals Act 1953 (Malay.)].
(149) Animal Welfare Act, Feb. 8, 2002, c. 439, Act No. XXV of 2001 (Malta) [Animal Welfare Act (Malta)].
(150) Animal Health and Development Law, Nov. 25, 1993, No. 17/93 (Myan.) [Animal Health and Development Law (Myan.)].
(151) WET VAN 19 MEI 2011, HOUDENDE EEN INTEGRAAL KADER VOOR REGELS OVER GEHOUDEN DIEREN EN DAARAAN GERELATEERDE ONDERWERPEN (WET DIEREN) [Act of May 19, 2011, containing an integrated framework for rules on animals kept and related subjects (ANIMAL LAW)], May 19, 2011 (Neth.) [ANIMAL LAW (Neth.)].
(152) Animal Welfare Act 1999 (N.Z.).
(153) LEY PARA LA PROTECCIÓN Y EL BIENESTAR DE LOS ANIMALES DOMÉSTICOS Y ANIMALES SILVESTRES DOMESTICADOS [LAW FOR THE PROTECTION AND WELL-BEING OF PETS AND WILD ANIMALS IN CAPTIVITY], Ley No. 747, May 11, 2011, LA GACETA [Official Gazette of Nicaragua], No. 96, May 26, 2011 (Nicar.) [LAW FOR THE PROTECTION AND WELL-BEING OF PETS AND WILD ANIMALS IN CAPTIVITY (Nicar.)].
(154) Animals Act 1952, c. 329, (Papua N.G.) [Animals Act 1952 (Papua N.G.)]; Animals Regulation 1967, c. 329 (Papua N.G.).
(155) LEY N° 4840 DE PROTECCIÓN Y BIENESTAR ANIMAL EL CONGRESO DE LA NACION PARAGUAYA SANCIONA CON FUERZA DE LEY [LAW FOR THE PROTECTION AND WELL-BEING OF ANIMALS], Jan. 28, 2013, GACETA OFICIAL [G.O.] [Official Gazette of Paraguay], No. 21, Jan. 30, 2013 (Para.) [LAW FOR THE PROTECTION AND WELL-BEING OF ANIMALS (Para.)].
(156) AN ACT TO PROMOTE ANIMAL WELFARE IN THE PHILIPPINES, otherwise known as “The Animal Welfare Act of 1998,” Republic Act No. 8485 (Phil.) [ANIMAL WELFARE ACT (Phil.)].
(157) O Ochronie Zwierzat [Act Regarding Animal Protection], Aug. 21, 1997, DZIENNIK USTAW RZECZYPOSPOLITEJ POLSKIEJ [JOURNAL OF LAWS OF THE REPUBLIC OF POLAND], No. 111 Item 724 (Pol.) [Law Regarding Animal Protection (Pol.)].
(158) Protecção aos Animais [Protection of Animals Act], Sept. 12, 1995, No. 92/95, DIARIO DO GOVERNO Ser. 1, 5722 (Port.) [Protection of Animals Act (Port.)].
(159) Animal Protection and Welfare Act, No. 154, Aug. 4, 2008, P.R. LAWS ANN. tit. 5, ch. 58 (Puerto Rico) [Animal Protection and Welfare Act (Puerto Rico)].
(160) Zakon o Zaščiti Živali [Animal Protection Act], Nov. 18, 1999, URADNI LIST NO. 98/1999, 14645 (Slovn.) [Animal Protection Act (Slovn.)].
(161) Animals (Control of Experiments) Act, Sept. 11, 1957, c. 97, 13 of 1957, LN 46A of 1978 (Solom. Is.) [Animals (Control of Experiments) Act (Solom. Is.)].
(162) Animals Protection Act, No. 71 of 1962 (S. Afr.) [Animals Protection Act (S. Afr.)].
(163) Dongmulbohobeob [Animal Protection Law], Act. No. 8282, Jan. 26, 2007 (S. Kor.) [Animal Protection Law (S. Kor.)].
(164) Prevention of Cruelty to Animals Ordinance, Cap. 573, July 10, 1907 (Sri Lanka) [Prevention of Cruelty to Animals Ordinance (Sri Lanka)].
(165) Djurskyddslag [Animal Protection Act], SVENSK FÖRFATTNINGSSAMLING [SFS] 1988:534 (Swed.) [Animal Welfare Act (Swed.)].
(166) SCHWEIZERISCHES TIERSCHUTZGESETZ [TSCHG] [ANIMAL WELFARE ACT], Dec. 16, 2005, SR 455 (Switz.) [ANIMAL WELFARE ACT (Switz.)].
(167) 動物保護法 (民國90年12月21日修正) Animal Protection Law, Nov. 4, 1998, XIANXING FAGUI HUIBIAN (Taiwan) [Animal Protection Law (Taiwan)].
(168) Pounds and Animals Act, 1988, c. 147 (Tonga) [Pounds and Animals Act (Tonga)].
(169) Hayvanlari Koruma Kanunu [Animal Protection Law], June 24, 2004, No. 5199, RESMÎ GAZETE, July 1, 2004 No. 25509 (Turk.) [Animal Protection Law (Turk.)].
(170) The Animals (Prevention of Cruelty) Act, Dec. 5, 1957, c. 220 (Uganda) [The Animals (Prevention of Cruelty) Act (Uganda)].
(171) Pro Zakhyst Tvaryn Vid Zhorstokoho Povodzhennya [On the Protection of Animals from Cruelty], Feb. 21, 2006, No. 3447—IV (Ukr.) [Law on the Protection of Animals from Cruelty (Ukr.)].
(172) Prevention of Cruelty to Animals Act, Feb. 13, 1974, Laws of the Republic of Vanuatu Consolidated Edition 2006, ch. 78, JR 58 of 1973 (Vanuatu) [Prevention of Cruelty to Animals Act (Vanuatu)].
(173) LA ASAMBLEA NACIONAL DE LA REPÚBLICA BOLIVARIANA DE VENEZUELA [LAW FOR THE PROTECTION OF DOMESTICATED ANIMALS AND WILDLIFE IN CAPTIVITY], GACETA OFICIAL [G.O.] [Official Gazette of Venezuela], 39.338, Jan. 4, 2010 (Venez.) [LAW FOR THE PROTECTION OF DOMESTICATED ANIMALS AND WILDLIFE IN CAPTIVITY (Venez.)].
(174) Prevention of Cruelty to Animals Act, Cap. 19:09, Consolidated Version of Act No. 25 of 1960 (Zim.) [Prevention of Cruelty to Animals Act (Zim.)].
(175) Prevention of Cruelty to Animals Act (1921), Cap. 245, LAWS REP. OF ZAMBIA (1994) (Zam.) [Prevention of Cruelty to Animals Act (Zam.)].
(176) The Prevention of Cruelty to Animals Act, Act No. 59 of 1960, art. 1 para. 2 (India) [The Prevention of Cruelty to Animals Act (India)]: “It extends to the whole of India except the State of Jammu and Kashmir.” Animal Welfare Act (U.K.), Explanatory Note No. 8: “The Act extends to England and Wales. It extends to Scotland only in respect of (a) section 46, which enables disqualification orders made by the courts in England and Wales to have force in Scotland, (b) sections 47 to 50, which make provision about the powers of the Scottish courts to enforce in Scotland of disqualification orders under the Act, (c) repeals of certain legislation and (d) commencement orders. It extends to Northern Ireland in respect of certain consequential and minor amendments only.” The Animal Welfare Act, No. 19 of 2008, art. 2 para. 1 (Tanz.): “This act shall apply to Mainland Tanzania.”
(177) Animal Welfare Act, 2009, LOV I 2009 hefte 7, § 2 (Nor.) [Animal Welfare Act (Nor.)].
(178) Akehurst is a strong defender of the view that we must strictly distinguish between civil and criminal norms, and that the law of jurisdiction gives each of these a different ambit: Akehurst (1972–3).
(179) Caroline Raspé, DIE TIERLICHE PERSON 64 ff. (2013). Contra Richard A. Epstein, Animals as Objects, or Subjects, of Rights, in ANIMAL RIGHTS: CURRENT DEBATES AND NEW DIRECTIONS 143 (Cass R. Sunstein & Martha C. Nussbaum eds., 2004).
(180) The exact wording is “Tiere sind keine Sachen” (SCHWEIZERISCHES ZIVILGESETZBUCH [ZGB] [CIVIL CODE], Dec. 10, 1907, SR 210, art. 641a para. 1 (Switz.) [CIVIL CODE (Switz.)]).
(181) Parlamentarische Initiative, Die Tiere in der schweizerischen Rechtsordnung, Bericht der Kommission für Rechtsfragen des Ständerates [Parliamentary Initiative, Animals in the Swiss Legal System, Report by the Commission to the Council of States for Legal Questions], Jan. 24, 2002, SR 99.467, at 4166 (Switz.).
(184) Bruce G. Carruthers & Naomi R. Lamoreaux, Regulatory Races: The Effects of Jurisdictional Competition on Regulatory Standards, Tobin Project Working Paper, 1, 1 (2009); Thomas G. Kelch, GLOBALIZATION AND ANIMAL LAW: COMPARATIVE LAW, INTERNATIONAL LAW AND INTERNATIONAL TRADE 306–7 (2011); David Kirby, ANIMAL FACTORY xiv (2010); MURPHY 16–8 (2004).
(185) In 2005, the Horse Slaughter Prohibition Bill was proposed by John Sweeney, passed by the House of Representatives, but died in the Senate: Horse Slaughter Prohibition Bill, H.R. 503 (109th) 2005–6 (U.S.).
(186) The Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2006, 119 U.S. 2120, Public Law 109-97, H.R. 2744-45, § 794 (U.S.): “Effective 120 days after the date of enactment of this Act, none of the funds made available in this Act may be used to pay the salaries or expenses of personnel to inspect horses under section 3 of the Federal Meat inspection Act (21 U.S.C. 603) or under the guidelines issued under section 903 the Federal Agriculture Improvement and Reform Act of 1996 (7 U.S.C. 1901 note; Public Law 104-127).” The ban was upheld in the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2014, 128 U.S. 5, Public Law 113-76, H.R. 3547 (U.S.).
(187) R. Scott Nolen, U.S. Horse Slaughter Exports to Mexico Increase 312%, AVMA NEWS, Jan. 15, 2008.
(188) Safeguard American Food Exports Act of 2015, H.R. 1942 (U.S.).
(189) For an insightful analysis of these conflicting views in Australia, see Katrina J. Craig, Beefing up the Standard: The Ramifications of Australia’s Regulation of Live Export and Suggestions for Reform, 11 MACQUARIE L.J. 51 (2013).
(190) Jehangir S. Pocha, Outsourcing Animal Testing: US Firm Setting Up Drug-Trial Facilities in China: Where Scientists Are Plentiful but Activists Aren’t, BOSTON GLOBE, Nov. 25, 2006.
(192) Jill Laster, Plan to Breed Lab Monkey Splits Puerto Rican Town, U.S. NEWS & WORLD REPORT, Nov. 30, 2009.
(193) Seals, AB Report.
(194) Seals, AB Report. See also Seals, Panel Report, ¶ 7.395: “For several years, many members of the public have been concerned about the animal welfare aspects of the killing and skinning of seals and about trade occurring in products possibly derived from seals that have been killed and skinned with avoidable pain, distress and other forms of suffering, which seals, as sentient mammals, are capable of experiencing. Those concerns have therefore been expressed by members of the public out of ethical reasons.” (Emphasis in original).
(195) Analogously for the Shrimp/Turtle case: Sands 537 ff. (2001).
(196) E.g., Appellate Body Report, EC—Measures Affecting Meat and Meat Products, WTO Doc. WT/DS26/AB/R, WT/DS48/AB/R (adopted Feb. 13, 1998) [EC—Hormones, AB Report].
(197) Ricardo M. Holdo et al., Migration Impacts on Communities and Ecosystems: Empirical Evidence and Theoretical Insights, in ANIMAL MIGRATION: A SYNTHESIS 131, 133 (E.J. Milner-Gulland et al., 2011).
(198) Hugh Dingle, MIGRATION: THE BIOLOGY OF LIFE ON THE MOVE 11 (2d ed. 2014).
(199) Award between the United States and the United Kingdom Relating to the Rights of Jurisdiction of the United States in the Bering’s Sea and the Preservation of Fur Seals (U.S. v. U.K.), R.I.A.A. 263, 279 (Arbitral Tribunal 1893) [Bering Sea Arbitration, 1893 R.I.A.A. 267].
(201) Id. 269: “[T]he United States has not any right of protection or property in the fur-seals frequenting the islands of the United States in Behring Sea, when such seals are found outside the ordinary three-mile limit.”
(202) The import ban became effective under § 609 of the U.S. Public Law, 101-102, 16 U.S.C. § 1537 note, amending the Endangered Species Act, 16 U.S.C. § 1531 (Apr. 19, 1996) (U.S.) [ESA].
(203) According to the AB, there is “a sufficient nexus between the migratory and endangered [sea turtles] involved and the United States for the purposes of [WTO law]” (Shrimp/Turtle I, AB Report, ¶ 133).
(204) Sands 535 (2001).
(205) International Convention for the Regulation of Whaling, Dec. 2, 1946, 161 U.N.T.S. 72 [ICRW]. The ICRW was signed by 110 parties as of 2019: Membership and Contracting Governments, INT’L WHALING COMM’N, http://iwc.int/members (last visited Jan. 10, 2019).
(206) Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 993 U.N.T.S. 243 [CITES].
(207) Simon Allison, Stories of 2015: Man Who Identified Cecil the Lion’s Killer Vows Death Will Not Be in Vain, THE GUARDIAN, Dec. 25, 2015; The Editorial Board, The Death of Cecil the Lion, N.Y. TIMES, July 31, 2015.
(208) Christina Capecchi & Katie Rogers, Killer of Cecil the Lion Finds Out That He Is a Target Now of Internet Vigilantism, N.Y. TIMES, July 29, 2015.
(209) Humane Society International (HSI), TROPHY HUNTING BY THE NUMBERS: THE UNITED STATES’ ROLE IN GLOBAL TROPHY HUNTING (HSI, Washington D.C. 2016).
(211) The African lion is endangered and threatened under the ESA, the African elephant is threatened under the ESA, the African leopard is endangered and threatened under the ESA, and the Southern white rhino is threatened under the ESA. If animals are endangered, the trophy import requires a permit (§ 9 ESA, Appendices to the ESA).
(212) Norimitsu Onishi, Outcry for Cecil the Lion Could Undercut Conservation Efforts, N.Y. TIMES, Aug. 10, 2015.
(213) Denmark Passes Law to Ban Bestiality, BBC NEWSBEAT, Apr. 22, 2015.
(214) At Last! Denmark Bans Bestiality, PETAUK, Apr. 2015.
(215) Det Dyreetiske Råd Udtalelse om menneskers seksuelle omgang med dyr 21 [Danish Ethical Council, OPINION ON HUMAN SEXUAL INTERCOURSE WITH ANIMALS] (Nov. 2006), available at http://detdyreetiskeraad.dk/udtalelser/udtalelse/pub/hent-fil/publication/udtalelse-om-menneskers-seksuelle-omgang-med-dyr-2006/ (last visited Jan. 10, 2019).
(216) Animal Protection Act, Act No. 473, May 15, 2014, para. 3a) chapter 1 (Den.), available at https://www.retsinformation.dk/forms/R0710.aspx?id=174047, implemented by LOV Nr. 533, Apr. 29, 2015 (Forbud mod seksuel omgang eller seksuelle handlinger med dyr, forbud mod salg af hunde på markeder, avl af familie- og hobbydyr, ændret rådsstruktur m.v.): “Det er forbudt at have seksuel omgang med eller foretage seksuelle handlinger med dyr, jf. dog stk.”