Category Archives: Reviews

Burning down the house: Should ecocide be an international crime?

Posted on by
Reply

Last week on 22nd November I attended a webinar on ‘The Crime of Ecocide’, as part of Inner Temple’s Social Context of the Law series. For those with eighty minutes or so to spare, the recording is publicly available online and well worth watching in full.

I had encountered the word ‘ecocide’ fairly frequently in activist circles.[1] I was also aware that a campaign exists to make it a criminal offence. However, going into the webinar I realised how little I actually knew about the substance of the campaign, the history of the concept, the individuals responsible for pioneering it, or how it might operate in practice. Happily, the webinar answered many of the questions I had going in, and plenty more besides.

Sir Geoffrey Nice QC, moderating the session, began by reflecting on the frustrations of COP26 and the scale of the climate and biodiversity emergencies, and noted that “the urgency of these matters under consideration no longer allows for the passage of time”. He posed a question which must surely have occurred to every practitioner seeking to use the law as an instrument for progress on environmental issues. Is the law going to be able to work fast enough to deal with these challenges, or do we have to think about alternatives? Dealing with shortness of time and the need for implementable solutions were common themes which came out strongly in the talks of both speakers and in many of the questions posed by the audience at the end of the session.

The first speaker was Professor Philippe Sands QC. He began his talk by explaining that the concept of ecocide has a fairly long history, having first been raised in the late 1960s in the context of the Vietnam War and the use of Agent Orange by the United States military. As an aside, it is surely no coincidence that Vietnam was the first of ten countries around the world which have, to date, adopted ecocide into their domestic criminal law as a specific offence. It is defined in Article 278 of the Vietnam Penal Code 1990 as “destroying the natural environment, whether committed in time of peace or war.” The term itself was coined in 1970 by the American academic Professor Arthur W. Galston, who viewed it as being analogous to genocide, and it gained widespread recognition after Olof Palme, then Prime Minister of Sweden, used it to refer to what was happening in Vietnam at the United Nations Stockholm Conference on the Human Environment in 1972.

However, Prof Sands explained that the concept remained somewhat marginal for several decades after the Stockholm Conference. He recounted a conversation in 1991 with the late great Professor Ian Brownlie about why his Principles of Public International Law contained nothing on environmental law and being told that it was because public international environmental law simply didn’t exist. After the International Court of Justice ruled that that the environmental principle of prevention was part of customary international law in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons in 1996, the subject did appear in the fifth edition of the textbook in 1998, but it was allotted just four pages. In 1998, when the preamble to the Rome Statute of the International Criminal Court was drafted, it was felt to be premature to include specific references to ecocide or to environmental crimes more broadly.

After the Rome Statute was drafted, however, the late Polly Higgins, a pioneering barrister and campaigner, took up the notion of ecocide and began to campaign for its widespread acceptance and adoption by relevant law-making institutions. The campaign is still spearheaded by Stop Ecocide International, the organisation she co-founded along with its current chief executive Jojo Mehta, and its charitable sister-organisation, the Stop Ecocide Foundation. In November 2020, at the request of politicians from Sweden’s governing parties, the Foundation convened an Independent Expert Panel for the Legal Definition of Ecocide, co-chaired by Prof Sands and Senegalese jurist Dior Fall Sow. The purpose of this panel was to draft a proposed definition of ecocide that could be used as the basis for further campaigning efforts to effect its adoption by the International Criminal Court (ICC) and other relevant institutions.

Prof Sands explained that in carrying out this drafting work, the panel were inspired by the work of Hersch Lauterpacht and Raphael Lemkin and the adoption by the international community after World War II of three new international crimes, in addition to the classical ‘war crimes’. These were crimes against humanity, which sought to protect the rights of individuals; genocide, which sought to protect the rights of groups; and the crime of aggression, which sought to curb and penalise the waging of illegal war. To this day, these remain the only international crimes of pertinence to be introduced in the post-war period, and all are codified in the Rome Statute. It is to this list that campaigners now propose the crime of ecocide be added.

The full text of the definition that the Independent Expert Panel proposed can be found at page 5 of its Commentary and Core Text document, published in June 2021, but the core component is this:

For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

Prof Sands highlighted that, despite the similarity in the name, the definition is not based on genocide because the suggested crime of ecocide would not have the same intent. Environmental degradation, while often committed intentionally (or at the very least recklessly), is not an end goal in itself in the way that the systematic destruction of a national, ethnical, racial or religious group is the end goal of a person who commits genocide. Rather, the destruction of the natural environment occurs as a by-product of other choices, usually in the pursuit of specific economic and social ends. Thus, the drafters instead modelled their definition on that of crimes against humanity under Article 7 of the Rome Statute.

The reason for the choice of nomenclature was rather simpler. When the Stop Ecocide Foundation carried out market research on the subject, they found that the public did not respond at all to the concept of ‘environmental crimes against humanity’, but had a much stronger and more instinctive response to the concept of ecocide, which the individuals polled almost universally agreed should be stopped.

Although they borrowed elements from the definition of crimes against humanity, the drafters wanted to come up with a non-anthropocentric definition of ecocide. Prof Sands stressed the legal significance of severing the link with humans in the definition, so that any potential future prosecutions under an amended Statute would not have to prove a causative link with harm to humans. On a more philosophical level, the definition reflects the notion that the natural world has some intrinsic and fundamental value, independent of its value to humanity.

There was a spirited debate about whether the definition should include a list of acts which would qualify as ecocide. In the end, a narrow majority favoured not including one, since lists in such a context tend to imply that anything not included is permissible, and this was not an impression that the drafters wished to create. Moreover, one could not realistically include a list of qualifying acts without including runaway climate change and to do so would be to place a huge political hurdle in the way of states signing up to support the concept, because it would create the impression introducing regulation to control their emissions by the back door. The consequence of adopting a definition without a list is that, were the proposed definition to be adopted by the ICC, it would be up to prosecutors to decide what acts to prosecute and judges to decide whether they qualify for conviction.

Prof Sands ended on a moderately optimistic note by highlighting that the concept of ecocide has been endorsed by the Secretary General of the UN, António Guterres, and Pope Francis. One of the committees in the Belgian Parliament has proposed to adopt a resolution in support of the adoption of the crime of ecocide and the full Parliament is expected to do so in the coming weeks. Prof Sands feels confident that there is momentum behind the concept which means that its adoption by the ICC is a matter of when, rather than if.

The second speaker was James Cameron, founder of FIELD (Foundation for International Environmental Law and Development). His talk moved beyond the text of the new proposed offence and considered its application in a wider context. He began by situating the ecocide campaign within the broader context of the youth climate movement, which has emerged partly in response to younger generations’ sense that current political and legal structures are inadequate to deal with the challenge at hand. He also noted that this movement uses the language of climate justice and made a plea for legal practitioners to think more creatively about how the law can be used to transformative effect.

Reflecting again on the early work of Polly Higgins on the issue of ecocide, he confessed to having been initially sceptical of a strategy which focused primarily on the ICC. He felt that a more productive approach would be to pursue existing rights arguments, especially those which argued environmental issues through the prism of human rights, through national courts and tribunals. Over time, however, he has come to view the concept more sympathetically as one potential way for the legal order to give expression to the most vulnerable pieces of the natural environment. He highlighted the parallel phenomenon of natural capital, more often discussed in the field of economics, as another potential way of giving institutional voice to a somewhat abstract idea, namely the protection of the natural world. He suggested that both natural capital and ecocide are fundamentally about creating rights in and for the environment for its own sake, beyond of its utility to humans.

Even though Mr Cameron has come around on the concept of ecocide as an addition to the ICC Statute, he still made a compelling case, first that radical concepts need to work through familiar structures, and second that ecocide could be more effectively embedded if it was able to operate through national as well international institutions. He suggested that trustees, ombudsmen, and advocates general could all help to ensure that there are people with procedural rights to pursue the issue in various tribunals, and counselled against putting all of the proverbial eggs in the basket of the ICC. He also argued that any campaign to add ecocide to the Statute of the ICC needs to think creatively about access to justice in this context and raised the question of whether there might be any scope for individuals to press charges under such a law.[2] While a new ecocide law would be significant and exciting step, it would still need to be viewed in the context of more general legal and non-legal advocacy on behalf of the environment. 

One theme which emerged across the webinar and the Q&A was the extent to which the problems which ecocide is designed to address stretch traditional notions of international law, which are geared towards relations between sovereign states. After all, it is not only, or even primarily, states which are responsible for the most egregious acts of environmental damage and degradation. One questioner asked whether corporations might potentially face prosecution by the ICC, but Prof Sands didn’t really see how corporate criminal responsibility could work in practice. The largest polluters can afford to pay almost any fine levelled at them and one cannot lock up a corporation.

Besides, international crimes are ultimately not committed by abstract governments or corporations but by individuals. This is as true for ecocide as it is for genocide, or crimes against humanity. Every active decision which results in catastrophic harm was made by someone. Thus, it was suggested by the speakers that the focus would have to be on prosecuting (and, if necessary, imprisoning) chief executives and politicians as individuals. Although the members of the Independent Expert Panel have all studiously avoided naming names, Pilita Clark, writing for the Financial Times, identified Brazilian President, Jair Bolsonaro, and ExxonMobil CEO, Darren Woods, as potential candidates. As outlandish as it might seem now, if the momentum keeps building behind the idea of ecocide, perhaps they might be the first of many.

What I have been watching this week…

After Sam’s lovely tribute to the joys of Advent last week I must admit that I have not been consuming anything nearly as highbrow as César Franck’s violin sonata recently. Instead I have been indulging in a bit of timey-wimey escapism and very much enjoying the current series of Doctor Who, which has been a slightly silly delight for the past few weeks, as the days have grown chillier and the evenings darker.

[1] The word derives from the Greek oikos, meaning home, and the Latin caedere, meaning demolish or kill. Thus, a rough translation (though not technically a correct etymology, since the word was a modern coinage) is “to kill one’s home”.

[2] The webinar did not include a discussion of the Aarhus Convention as a potential model and/or point of comparison for such participation and procedural rights but, as Sam pointed out to me, it certainly seems to offer some interesting parallels.

The Kingsland Cup 2021… Or How I Learned to Stop Worrying and Love the Moot

Posted on by
Reply

Last Thursday, after a year of virtual advocacy exercises, I took part in my first ever in-person moot. The Kingsland Cup and Prize Moot is run annually by Francis Taylor Building. Named in honour of Lord Kingsland QC, it covers a wide range of public, environmental and European law topics. Participants tackle two moot problems over the course of three rounds, with a paper sift of skeleton arguments followed by two ‘live’ rounds.

The 2021 final took place last week and my teammate, Tom Lambert, and I were fortunate enough to be declared the winners after a closely matched competition with an excellent team from the University of Oxford. It was judged by Sir Keith Lindblom, Senior President of Tribunals, and Professor Alison Young, Sir David Williams Professor of Public Law at the University of Cambridge. I am extremely grateful to both of them for giving up their time and to Esther Drabkin-Reiter and Michael Brendan Brett from FTB for organising this year’s competition and setting two fascinating and finely balanced moot problems.

The first round and semi-final involved a highly technical planning law problem, focusing on whether a Lawful Development Certificate (LDC) can be granted under s. 191 Town and Country Planning Act 1990 (“the 1990 Act”) to certify that a site has ‘nil’ planning use, and the circumstances in which a previous use may be said to have been abandoned. The claimant was a local authority, which had refused to grant an LDC to a multiplex cinema chain to certify that a recently acquired site had nil use. That refusal had been overturned on appeal by a planning inspector, who decided that s. 191 gave him the power to grant an LDC for nil use and that he was justified in granting one in the present circumstances, on the basis that the previous use of the site as an independent cinema had been abandoned. The multiplex chain appeared in the proceedings as an interested party but was not represented by counsel.

The claimant brought a judicial review on two grounds:

  1. The Decision by the Inspector was unlawful on the basis that there was no power to grant a Lawful Development Certificate under s. 191(1)(a) of the 1990 Act for a ‘nil’ use.

  1. The Inspector erred in law in concluding that the use had been abandoned.

For the first round, teams had to submit two skeleton arguments, one for the claimant and one for the defendant. Four teams were then selected to go forward to the semi-final, which took place on Zoom in April this year, with the claimant and defendant roles in each semi-final being assigned at random. Tom and I were representing the claimant local authority. Alongside a team from the Inns of Court College of Advocacy, we battled our way through some significant technical difficulties to present our submissions.

On Ground 1, which I took, the case ultimately turned on the somewhat esoteric semantic question of whether the phrase “any existing use of buildings or other land” in s. 191(1)(a) of the 1990 Act extended to cover nil use. Could “any” also encompass “none” or did it have to refer to a positive use? I was both gratified and slightly disappointed when Sir Keith Lindblom, who also judged our semi-final, beat me to the King Lear quote I had planned to include in my summing up (“nothing will come of nothing”) in one of his interventions. One of our central submissions was that, since planning enforcement action cannot be taken against a site that truly has nil use, the only possible reason the interested party could have had for wishing to obtain an LDC was to circumvent the ordinary planning process and the policies in the Local Plan designed to prevent the loss of grassroots leisure and entertainment venues.

Ultimately, although he reserved judgment, Sir Keith indicated that he was inclined to agree with the claimant’s position that the provisions of s.191 did not extend to nil use. This was primarily due to the plain meaning of the words in the statute but also because of the impossibility of enforcement action against a site that has truly been abandoned and has no planning use. 

We advanced to the final and out of my comfort zone. Having previously worked in housing policy, I was at least somewhat familiar with planning legislation and policy, even if the provisions around Lawful Development Certificates were new to me. The problem for the final, however, involved a range of legal issues with which I was less familiar, including the relationship between Article 8 and Article 10 of the European Convention on Human Rights, the nature of proportionality review and whether or not consistency should be accepted as a freestanding ground of judicial review. Perhaps inspired by a certain viral parish council meeting earlier this year, it was an appeal to the Supreme Court concerning the decision by a District Council Monitoring Officer to sanction a parish councillor for breaking the parish council Code of Conduct with an unruly outburst in an online meeting.

Though clearly inspired in part by the Jackie Weaver saga, the facts of the case and the legal issues raised were actually most similar to those in R (on the application of Robinson) v Buckinghamshire Council [2021] EWHC 2014 (Admin), where the High Court quashed the decision of a Deputy Monitoring Officer to sanction Cllr Clive Robinson over comments he had made about fellow councillors, which were said to be in breach of the PC Code. The court in Robinson held that the sanction represented a disproportionate infringement on Mr Robinson’s right to freedom of Expression under Article 10 ECHR, and therefore a violation of s. 6 of the Human Rights Act 1998.

The case in the Kingsland final centred on whether or not the decision to uphold a complaint against a councillor for saying “You do not have the authority to do this, Alice Tinker! You can’t just expel them from the meeting, face up to the accusations of incompetence, you big girl’s blouse!” was a similarly disproportionate interference with his Article 10 rights, and whether it mattered that a similar complaint against Ms Tinker had been decided differently. The grounds of appeal were:

  1. The judge at first instance erred in finding that the speech in question was not supported by case law on protection of political speech and/or that the decision to uphold the complaint was proportionate.
  1. The judge erred in finding that she could not consider consistency as a freestanding ground of review.

As the final was in person, each team was required to bring two hard copies of the bundle, one for ourselves and one for the judges. With nearly 500 pages of authorities between us, this meant that each team arrived with around 1000 neatly tabulated pages, which certainly helped add to the illusion that we were taking part in a real hearing. 

This time, Tom and I were acting for the respondent and again I took Ground 1. I submitted that the Monitoring Officer was correct to decide that the quoted portion of Cllr Trott’s outburst was not political speech and should not therefore be afforded enhanced protection under Article 10, drawing heavily on the judgment in Heesom v Public Service Ombudsman for Wales [2014] EWHC 1504 (Admin), [2014] 4 All E.R. 269, which distinguished between “matters of public administration and public concern including comments about the adequacy or inadequacy of performance of public duties by others” on the one hand and “gratuitous personal comments” on the other, and held that the former would be classed as political speech, while the latter would not [38(v)]. I characterised Cllr Trott calling Cllr Tinker a “big girl’s blouse” as a gratuitous personal comment.

I also submitted that the sanction was justified on the basis of the qualifications to the right to free expression in Article 10(2) ECHR, in light of the need to balance Cllr Trott’s Article 10 rights against Cllr Tinker’s right to a reputation under Article 8.  Finally, I submitted that proportionality is not a substitutionary review, and an appellate court should therefore uphold the decision of a lower court, provided it is satisfied that the lower court carried out the balancing exercise correctly, even if it might itself have come to a different conclusion on the facts. On this last point, I deployed a cricketing analogy, likening the process of proportionality review in an appellate court to a scenario in which hawk-eye indicates that a DRS review of an LBW decision remains “umpire’s call”.

Our opponents, Daniil Ukhorskiy and Amy Gregg, made some excellent arguments drawing on the jurisprudence of the European Court of Human Rights, about the difficulty and undesirability of disaggregating comments made in the heat of the moment and separating them into categories of political and non-political speech. Tom was extremely patient with me as I dealt with numerous judicial interventions on the plausibility of such disaggregation and overran my allotted time, leaving him with only ten minutes or so to make his submissions on whether consistency should be accepted as a freestanding ground of judicial review.

On Ground 2 the key questions were whether or not the case law indicates that consistent administration can be viewed separately from the doctrines of irrationality and legitimate expectation, and whether it would be desirable for it to stand alone as a ground of review in its own right. Counsel for the appellant submitted that the Supreme Court’s judgment in R (on the application of Gallaher Group Ltd and ors) v The Competition and Markets Authority [2018] UKSC 25, [2019] A.C. 96 was only authority for the fact that equal treatment is not a distinct principle of administrative law. It did not address the issue of consistent administration — that is the obligation for public authorities to apply their policies in a consistent way. Tom submitted in response that such a fine distinction would create unnecessary confusion in the law and that there was, in any event, no need to draw it. Decisions which might fall foul of a doctrine of consistent administration would probably be overturned anyway on the basis of irrationality or the frustration of legitimate expectations.

The judges deliberated for around fifteen minutes and, while they again reserved their judgment, they suggested on Ground 1 that the appellant’s position on the disaggregation of intermingled comments would likely be accepted, though they agreed that the role of the court in a proportionality review was not to remake the decision. On Ground 2, Sir Keith questioned whether it really mattered if consistency was officially accepted as a freestanding ground of review or not, since the facts of the case clearly indicated that Cllr Trott was not treated fairly by the Monitoring Officer and the decision might therefore have been deemed to be unsound on that basis. However, he did conclude by suggesting that the law should not be like mushrooms (a running theme throughout counsel’s submissions) and multiply grounds of review excessively.

Had this been a real case, we likely would have lost, since the judges indicated that they probably would have allowed the appeal, at least on Ground 1. Fortunately for us, however, mooting is not real life and we were declared the winners by an extremely narrow margin. Competing in this year’s Kingsland Cup has been a wonderful experience. It has taught me a great deal, both about the relevant areas of law and about online and in-person advocacy. I would highly recommend the competition to anyone with an interest in public law.

The European Animal Rights Law Conference 2021

Posted on by
Reply

On 17 and 18 September 2021, I attended the European Animal Rights Law Conference 2021 in Cambridge, United Kingdom. This was the second such conference to be hosted by the Cambridge Centre for Animal Rights Law. It brought together legal academics and practitioners from around Europe and beyond to discuss their latest research. For an explanation of what falls within the scope of animal rights law, as opposed to animal welfare law, please see my previous blog post.  

The programme for the conference can be found here and recordings of all the presentations will shortly be made available to watch online. This post does not provide an exhaustive account of the conference. It aims to whet the appetite, and to give an idea of the range of ideas circulating in the animal rights law community.

Raffael Fasel, executive director of the Cambridge Centre for Animal Rights Law, introduced the conference. As is impossible to resist, Dr Fasel drew a parallel between the work of the Centre and our common experiences in the last eighteen months, saying that animal rights are inseparable from human health, but that animal interests are generally only taken seriously when human interests are also at stake. The aim of work in this field is both to clarify such connections and make the case for the importance of animal rights for their own sake. 

Animals as agents, animals as knowers, animals as activists?

Angie Pepper and Richard Healey made the first substantive presentation. It was not legal, but philosophical. Drs Healey and Pepper developed the concepts of assent and dissent to address the problem of reconciling human-animal relationships with animals’ right to self-determination. The presentation was extremely clear and came in two parts. First, Dr Healey summarised the paper they had published together earlier this year, entitled ‘Interspecies justice: agency, self-determination, and assent’. Second, Dr Pepper explained their doubts about the conclusions in the paper.

The paper states that animals have a right to self-determination in a certain context, which is to say that their will is authoritative in that context, when two conditions are met. The conditions are, first, that the animal has sufficient interest in self-determination to ground duties in others, and, second, that the animal is a sufficiently competent decision-maker in the relevant context. Animals’ interest in self-determination itself derives from their agential capacities. When an animal (human or not) has a right to self-determination in a certain context, their will is structurally decisive in that context, which is to say that their will has normative authority in that context. To illustrate, a crow has a right not to have their body interfered with, and this right excludes all other reasons for interfering with the crow’s body. In other words, their right is absolute.

Humans use consent to navigate their self-determination. This means that they understand their right to self-determination and its correlative duties and are capable of intending to waive that right. For example, I understand that I have a right to non-interference with my body, but I waive that right when I consent to being hugged. But most animals cannot understand their right to self-determination on a normative level. This means that they cannot consent to waiving that right. As a result, it appears that it would be morally impermissible for humans to interfere with an animal’s right to self-determination by, for example, stroking, cuddling or bathing an animal.

To solve this problem, the paper develops the concepts of assent and dissent, which are, respectively, the wilful affirmation of, and the wilful refusal to engage in, an interaction. Assent and dissent may be active or passive but must be voluntary and based upon understanding of the interaction in question. In this way, the paper proposes that an animal can assent to an interaction with a human being without having the normative understanding to consent to it, making permissible certain human-animal interactions. A dog may not normatively consent to being cuddled, but they can assent to being cuddled by voluntarily affirming the cuddle in an active or passive way.

Dr Pepper explained that the inspiration for the paper was a stray cat who had adopted her and Dr Healey. The paper implicitly focussed on the question whether interactions within a companion animal relationship could be permissible. What it failed to tackle was the question whether the broader project or relationship within which such interactions took place could itself be permissible. On reflection, it appeared that the answer was no. Valid assent to specific interpersonal interactions cannot legitimise the relationships and institutions in which animals find themselves. This is because, in order to assent to something, an animal requires sufficient information about it and understanding of it, which as an empirical matter they cannot have in the cases of relationships and institutions. For example, an animal cannot consent to being a pet because they cannot, at the onset of the relationship or at any other stage, understand what is at stake, and their assent to specific interactions cannot be aggregated to form assent to a relationship or a status. Further, in the absence of any meaningful opportunity to leave the relationship, they cannot dissent from it. In order to be at all justifiable, a companion animal relationship would have to provide a pet with the opportunity to leave at any moment. The presentation concluded on this doubtful note.

Eva Meijer gave a wide-ranging presentation on the theme of animal agency and animals as knowers. Like the one before, it asked, rather than answered, questions. Dr Meijer’s starting-point was a new law passed by the Dutch legislature earlier this year that will significantly improve the welfare of farmed animals when it comes into force in 2023. Among other things, it may end factory farming in the Netherlands. Dr Meijer proposed that laws such as this move the conversation on from animal welfare to animal flourishing. And the question of animal flourishing is both species-specific and individual-specific. It cannot be easily measured from the outside. If we are going to take animal sentience seriously and go beyond anti-cruelty laws, we must grapple with the fact that animals are knowers, of the world and of their own lives; that animals are subject to epistemic injustice when we deny them this status; and that our knowledge of them is distorted by anthropocentrism, which is to say by our own interests in observing animals. Not only this, but the means of acquiring knowledge about animals generally violate their dignity in one way or another. So we are caught in a situation where we do not know enough about animals’ subjectivity to properly legislate for their flourishing, but we are both morally and epistemically constrained from understanding the circumstances under which they would flourish. 

Alasdair Cochrane gave the keynote address. He described it as more of a call to arms than a tight argument. The subject was interspecies solidarity, and there were two questions. Why should we think about solidarity in an interspecies context? And can solidarity cross a species barrier?

The context of the talk was Dr Cochrane’s work on the animal turn in political philosophy, or the political turn in animal ethics. The political-animal turn, from whatever perspective, is broadly based on the premise that benign human-animal relations require not only personal but also political and legal transformation. Changing hearts and minds is not enough, because political and legal institutional barriers prevent animals from leading good lives. Works such as Zoopolis by Sue Donaldson and Will Kymlicka, and Dr Cochrane’s own book Should animals have political rights?, set out visions of just worlds. Less effort has been expended asking how we achieve, and sustain, those visions. These, according to Dr Cochrane, are “very very very very very very very” tough questions. But he proposes that solidarity plays an important role. This is because it has played an important role in other social justice movements, in three ways: as a bond to create and maintain a political community; as a shared commitment to unite activists; and as an institutional framework to cement support of the vulnerable. In short, solidarity is a bridge between compassion and political or legal change.

Turning to the question whether solidarity with animals is possible, Dr Cochrane adopted the three forms of solidarity identified by Sally Scholz. These track the three purposes of solidarity. They are social, political, and civic solidarity. Humans can share social solidarity with animals: pets and police dogs are recognised as part of our communities. Even though not all animals are currently seen this way, it is in principle possible. Humans can share civic solidarity with animals: there exist institutional apparatuses for the protection of vulnerable animals, such as shelters, vaccinations for endangered animals, and police dog pensions. These examples may apply to a tiny proportion of animals, but they show that, in principle, civic solidarity can cross the species barrier. Can humans share political solidarity with animals? This is not clear, but it seems not. Political solidarity requires a unifying commitment to political action, which animals cannot share with humans because they cannot understand political action. Some might see animals’ deliberate resistance to oppression as commitment to the political fight against oppression. Dr Cochrane is doubtful. But even if we can only share social and civic solidarity with animals, we can have political solidarity with each other as humans on behalf of animals, which serves the same purpose. 

Animals in constitutions

We moved from the political to the legal. John Adenitire presented his forthcoming paper, which argues for a conception of the rule of law that takes seriously the sentience of animals other than humans. The paper forms part of an ongoing research project conducted by Drs Adenitire and Fasel on animal rights and constitutionalism. The top-line contention is that constitutional principles that focus only on humans at the expense of all other animals (and also at the expense of humans who lack certain privileged traits) lack justification. New, more justifiable principles must be forged. The rule of law is just one aspect of constitutional theory that must be reshaped to accommodate animals.

The (or a) dominant account of the rule of law is that it facilitates the guidance of human conduct by the law. On this account, the rule of law does not protect those who cannot fit their conduct to the guidance of the law. Such individuals are passive legal subjects, who are to be contrasted with active legal subjects, who are capable of understanding and adjusting their conduct to fit the law. Animals are passive legal subjects, as are some humans, such as infants and severely mentally disabled individuals. The rule of law as generally conceived only accounts for active legal subjects. If the rule of law is to protect not only animals but also the humans who are passive legal subjects, it requires a different rationale. Dr Adenitire proposes that a more inclusive account of the rule of law is that it restrains arbitrary power. Anyone, whether capable of understanding the law or not, can be protected by the restraint of arbitrary power. This conception of the rule of law is preferable and should be promoted.

Dr Adenitire substantiated this central argument with reference to three representative theories of the rule of law: Lon Fuller’s formal theory, Jeremy Waldron’s procedural theory, and T. R. S. Allan’s substantive theory. Each of these theories of the rule of law has a different thickness, but each is addressed exclusively to active legal subjects. Dr Adenitire does not commit to a thicker or a thinner conception of the rule of law, although he notes that a thicker conception would provide animals with greater protection. What he shows is that each of the formal, procedural and substantive theories can be adjusted to embrace passive as well as active legal subjects. So wherever a theorist sits on the question of the thickness of the rule of law, they should accept that the rule of law protects passive legal subjects, including animals, by restraining arbitrary power.

Are animals legal subjects at all? Dr Adenitire answers this question with an emphatic yes, because animals can and sometimes do hold legal rights. His justification for this position, which is familiar to animal rights lawyers, is set out clearly in the paper.

David Bilchitz’s presentation made legal theory concrete. He asked the question: Through which institutional structures should animal interests be addressed in democracies?

Professor Bilchitz’s starting-point was a 2016 decision of the Constitutional Court of South Africa, National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development and another [2016] ZACC 46; 2017 (1) SACR 284 (CC). The case concerned a constitutional challenge by the National Council of Societies for the Prevention of Cruelty to Animals (as is its correct name) to section 7(1)(a) of the Criminal Procedure Act (CPA). In summary, section 7(1)(a) of the CPA means that, in South Africa, only natural persons, not legal persons, may institute a private prosecution. This excluded the NSPCA, which is a legal person. In effect, the NSPCA could not privately prosecute animal welfare offences. In the context of the poor enforcement of animal welfare law by public bodies, the inability of a specialist body to enforce the law was a significant problem. The NSPCA argued that the exclusion of legal persons from the power of private prosecution deprived them of the equal protection and benefit of the law for no legitimate government purpose. As such, section 7(1)(a) of the CPA was contrary to the rule of law and unconstitutional.

The High Court and Supreme Court of Appeal dismissed the NSPCA’s claim, but the Constitutional Court allowed the NSPCA’s appeal and declared that the NSPCA has the power of private prosecution, but not because the NSPCA’s main argument succeeded. Section 7(1)(a) of the CPA was not declared to be unconstitutional. However, the Court decided that the power of private prosecution was “expressly conferred by law” on the NSPCA under section 8(1) of the CPA. Section 6(2)(e) of the Societies for the Prevention of Cruelty to Animals Act, which gives the NSPCA the power to “institute legal proceedings connected with its functions”, should be read broadly to include the power of private prosecution. This broad reading is justified by “the unique legislative context of the animal protection regime” [52], “changes in legislation which have made the NSPCA structurally capable of private prosecutions” [53], and the “constitutional values” of animal welfare and conservation that the NSPCA is charged with upholding [61].

Professor Bilchitz pointed out that, in this fascinating judgment, the court did not properly tackle the issue of the NSPCA’s fitness as a prosecutor, in terms of resources and conflicts with its other functions. How, in principle, should a public body be set up in order to defend sentient beings with inherent value who cannot participate in democratic process? And can the NSPCA function in such a way in practice? The presentation answered these questions in such detail that the answers are best left to the recording. But they showed Professor Bilchitz’s expertise in both normative animal rights issues as they apply to institutions and the granular detail of the animal rights institutions that we have inherited.

Animals as persons and/or rights-holders?

Saturday’s first presentation was by Małgorzata Lubelska-Sazanów, who, refreshingly, took a civil-law approach to the issue of animal personhood. The civil codes of many European countries contain both dereification clauses, which affirm that animals are not property, and respective applicability clauses, which state that the provisions that govern property govern animals too. The result is that animals are property in all but name. However, judicial decisions tell another story. Since not all civil-law ownership rights (ius possidendi; ius utendi, fruendi, and abutendi; and ius disponendi) straightforwardly apply to animals, judges sometimes treat animals as special cases.

We were given two examples. First, in the German case AZ. VIII ZR 210/06, 9.1.2008, a horse that was sold suffered from a defective castration operation. The judge took into account the horse’s health when deciding whether damages could be recovered for breach of the contract of sale. (With my rusty German, I cannot locate the relevant passage in the judgment, but we can be confident that Dr Lubelska-Sazanów knows what she is talking about.) Second, in the Polish case I ACa 528/14, SA Krakow, 17.6.2014, the Court of Appeals in Kraków (First Civil Division) dealt with the issue of ownership rights over animals designated as homeless by the Polish Animal Protection Act. The Court summed up the trouble that judges face when confronted by the paradoxical legal status of animals:

Należy jednak podkreślić, że ustawa nakazuje stosować przepisy dotyczące rzeczy „odpowiednio”. Zastrzeżenie to wiąże się z postawą humanizmu wobec zwierząt. Z tego względu określa się wyraźnie, że zwierzę nie jest rzeczą (art. 1 ust. 1 ustawy). Taka interpretacja ustawy powoduje, iż odpowiednikiem prawa własności (rzeczy) jest prawo własności zwierzęcia, które jednak – ze względu na przedmiot niebędący rzeczą, nie jest własnością w rozumieniu art. 140 kc. Przepisy kodeksu cywilnego mają tutaj tylko odpowiednie zastosowanie.

It should be emphasized, however, that the Act requires that the provisions concerning things be applied “appropriately”. This reservation is related to the attitude of humanism towards animals. For this reason, it is clearly stated that the animal is not a thing (Article 1(1) of the Act). Such an interpretation of the Act means that the equivalent of the ownership right (thing) is the animal ownership right, which, however – due to the object not being a thing, is not property within the meaning of Art. 140 of the Civil Code. The provisions of the Civil Code only apply appropriately.

(Apologies for the Google-Translate-based translation!)

Dr Lubelska-Sazanów concluded that the simplest way out of this absurd situation was the creation of a third category of legal entities apart from persons and property, which would be the category of animals. This would avoid the troubles associated with applying a pre-existing package of rights or vulnerabilities to a sui generis group of beings. Civil legal codes would be capable of introducing such structural change with the addition of only a few articles.

Marina Lostal, presenting a published article, continued the trend of asking bold questions. Could animals qualify as victims before the International Criminal Court? She always knew, she said, that the answer to this question would be no. Under Rule 85 of the ICC’s Rules of Procedure and Evidence, there are three requirements to be satisfied in order to qualify as a potential victim. One must be a natural person; one must be capable of suffering harm; and such harm must be as a result of crimes under the jurisdiction of the court. Animals satisfy the second and third requirements, but not the first. As a matter of ICC precedent, a natural person is simply a human being.

Dr Lostal did not discuss whether this precedent was justified or capable of being overturned, because, in her opinion, it would also be wrong for animals to be treated as victims. It would open up the Court to accusations of triviality and of failure to use its limited resources efficiently, and it would mean using legal tools to address crimes that they are fundamentally ill-suited to address. But the question should be asked because it exposes the non-existence of animals in the Court’s legal framework. Animals feature in every reparations case that the ICC has ever dealt with, as an important practical and cultural part of the daily lives of victims of international crimes. The silence of international criminal law on the legal status of animals sits awkwardly alongside developing bodies of domestic law that consider animals to be legal subjects capable of bearing rights. Like Dr Lubelska-Sazanów, Dr Lostal considers that the codification of more nuance in this area would be reflective of legal practice and animals’ moral status.

Josh Jowitt spoke about what is probably the most famous animal-rights case in the English-speaking legal world: the Nonhuman Rights Project’s habeas corpus petition and subsequent appeals on behalf of Happy, a fifty-year-old Asian elephant kept alone in the Bronx Zoo in New York City. That litigation, like many topics mentioned here, deserves its own blog post. For now, it suffices to say that the New York Court of Appeals, the highest court in the state of New York in the United States of America, will shortly hear arguments about whether Happy is a legal person entitled to bodily liberty.

Dr Jowitt began by drawing a parallel between Happy’s case and the film Miracle on 34th Street. In both cases, a court must choose whether to follow a rule that would lead to injustice, or to disregard the rule and apply a broader principle in favour of justice. To support this analogy, Dr Jowitt drew on the work of the legal theorist Gustav Radbruch. In his 1946 paper, ‘Statutory Lawlessness and Supra-Statutory Law’, Radbruch proposed that judges consider a hierarchy of interconnected virtues when deciding cases. They are, in descending order, legal certainty, justice, and public benefit. Although, ordinarily, the primacy of legal certainly requires the application of unjust laws, some laws are so unjust that they undermine legal certainty, losing the very quality of law. In these situations, judges are obliged to do justice rather than apply the unjust rule. Dr Jowitt likened this situation to H. L. A. Hart’s penumbral cases, in which judges have discretion to go beyond the positive law. He argued that the fact that the Court of Appeals has agreed to hear Happy’s case, as part of a tiny minority of cases, shows that it is a penumbral case.

Dr Jowitt went on to make the point that the common law has always addressed injustice by being flexible. He referred to R v R [1991] UKHL 12; [1992] 1 AC 599, in which the House of Lords upheld Lord Lane CJ in the Court of Appeal in abolishing, or ceasing to recognise, a marital defence to rape. The Lord Chief Justice said: “This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.” He also referred to a case beloved of animal rights lawyers, Somerset v Stewart (1772) 98 ER 499, in which Lord Mansfield held that the common law could not support a practice as immoral as human slavery. In conclusion, the presentation sought to provide a soft natural-law reason why the Court of Appeals should allow the Nonhuman Rights Project’s appeal in Happy’s case.

Darren Calley gave a presentation focussed on the question whether animals have any right to life. This issue is not generally given much space in animal law discussions, with the focus being on welfare and quality of life. Dr Calley puts this down to the utilitarian moral origins of animal welfare laws. Jeremy Bentham, the utilitarian philosopher, famously said that whether a being could suffer was what decided whether that being mattered morally. He wrote of animals in Morals and Legislation in 1789: “The death they suffer in our hands commonly is, and always may be, a speedier, and by that means a less painful one, than that which would await them in the inevitable course of nature. If the being killed were all, there is very good reason why we should be suffered to kill such as molest us: we should be the worse for their living, and they are never the worse for being dead.”

The two hundred subsequent years of animal welfare legislation in the United Kingdom prioritised the prevention of cruelty and, eventually, the positive promotion of welfare. Richard Martin’s Act in 1822 was broadened by John Pease’s Act in 1835; the 1849 Cruelty to Animals Act replaced that, and was in turn replaced by the 1911 Protection of Animals Act. The modern Animal Welfare Act 2006 was the first new piece of animal cruelty legislation in almost 100 years. Each new law was an incremental improvement, with no step-changes.

Dr Calley proposed that, in the late 1700s and early 1800s, animals lived such painful lives that the prevention of suffering was the overriding moral priority. The intervening years have seen the lives of animals significantly improve, or at least the lives of those that live visibly among us, as pets or in zoos. If animals’ lives are now more worth living in some sense, is it more meaningful to speak of a right to life than when Bentham wrote? One small statutory provision might hint at this. Section 17A of the Animals (Scientific Procedures) Act 1986, added by amendment in 2013, provides for the release and re-homing of animals that have been subjected to experiments. If animals’ lives have no inherent value, there could be said to be nothing wrong with painlessly killing animals once their use as test subjects has ended. This is contemplated in section 9(4) of the Animal Welfare Act 2006: “the destruction of an animal in an appropriate and humane manner” is not an offence. The 2013 amendment is a slight indication that it is not just pain and pleasure that matter for animals, and that Bentham’s comments in 1789 are no longer, as it were, good law.

Joe Wills and Saskia Stucki gave talks about animals and warfare, which I was unfortunate enough to miss. Knowing their work, I am sure that the recordings of their presentations will be worth watching.

At the risk of sounding obsequious, I struggle to reflect on the conference without feeling proud that this community is producing such original, rigorous and compassionate work. I was aware on several occasions during the talks that, to many in the wider legal world or outside the law altogether, the ideas discussed would seem far-fetched. To speak of a pet’s right not to be a pet is far removed from the concerns that most people have about animal welfare. To be an animal rights lawyer is often to be acutely aware of the distance between one’s own views and the views of most of society. But this is what it is to be at the vanguard of a movement for justice. Some ideas that now seem radical will gain acceptance as society hosts new conversations; some will be discarded. When Lord Pannick QC was before the Divisional Court in the second Miller case, about the prorogation of Parliament, he opened with a joke. “That got a good laugh, but unfortunately so did the rest of my submissions.” At first, the view among lawyers was that the case was the Prime Minister’s to lose. Lord Pannick went on to successfully convince the full bench of eleven Supreme Court justices of the correctness of his case. We will see which of the ideas aired at this conference will stand the test of time.

What I’ve been doing this week…

As part of my attempt to keep up with the debate on common-good constitutionalism in the United States, I read three great pieces by three great young scholars. Conor Casey sums up the debate so far (from the point of view of a proponent) (for Westlaw subscribers only, but the author can be contacted for a copy). Michael Foran valiantly makes the case for judicial review and fundamental rights under common-good constitutionalism. And Jamie McGowan makes the case against rights. I am far from ready to wade into this one, but I do feel prepared to say that the debate could do with more diversity of views about what constitutes the common good (and, indeed, more diversity of participants).

And train journeys prompted me to start my second viewing of Netflix’s Call My Agent! / Dix pour cent. Joyful, melodramatic escapism.