In a judgment passed in June of 2021, the Delhi High Court issued a set of guidelines for feeding and treatment of community dogs after holding that every dog is a territorial being. The Court observed:
“Animals have a right under law to be treated with compassion, respect and dignity. Animals are sentient creatures with an intrinsic value. Therefore, protection of such beings is the moral responsibility of each and every citizen including the [sic] governmental and non-governmental organisations.”
This ruling is a telling example of the legal relationship between humans and the non-humans they co-exist with. Why? Because the law is the body of norms that regulates the relationships between persons or between persons and things. Within it, a unit entrusted with rights and duties—often termed a ‘legal person’—exists, who can exercise its rights and enforce them in courts.
The defining feature of this ruling—and most prevailing legal systems worldwide—is that except humans, other natural elements have not been granted the status of a legal person. In Canada, for example, animals are considered the property of humankind. This highlights the intelligent species divide: wherein human actors grant themselves a status superior to non-human actors. Doing so renders nature as a commodity that can be used, destroyed or protected as per the whims and fancies of humans—and also as a commodity that cannot legally protest such injustice.
Such legal understandings of the relationship between humans and nature are significant in the Anthropocene Age we currently live in—which exhibits the humanisation of nature, and more importantly, the immense threats of environmentally unjust anthropogenic interventions on the natural world.
These threats include rising global temperatures, degradation of land, and deteriorating air and water quality, all of which are now concomitant to climate change, and have critical effects on the lives of animals. In India, for example, a quarter of land animals, birds, and plants are likely to become extinct due to mindless urbanization, diminishing resources for sustenance, and pollution.
In the crop fields of Argentina, #bees have been building nests for their young out of some strange materials. For the first time, scientists have found bee nests made entirely out of #plastic waste. https://t.co/6jyd5v1r2h
— Matt Kelly (@bymattkelly) June 1, 2019
If anthropogenic activities are legitimised by our prevailing legal systems, that makes the latter anthropogenic too. Could these rapid biodiversity losses change with a shift to a non-anthropogenic legal paradigm? In such a system, all elements of Nature, including plants and animals, are legal persons due to their intrinsic value. This gives adequate consideration to animals in the legislative sphere and places animal and human interests on an equal footing. Apart from a moral duty, humans would be legally bound to respect nature.
Have Legal Systems and International Communities Really Forsaken the World’s Non-Humans?
“…Nature provides a free lunch, but only if we control our appetites…”
— William Ruckelshaus
“The law acts as one catalyst in a melting pot of factors that have contributed to the worsening of the climate crisis,” argues Shweta Sood, Head of Programmes at 50by40, a coalition of organisations working towards creating fair and sustainable food systems. “The proliferation of human-centric legal systems has certainly normalised the idea of pushing the boundaries of nature [consisting of flora and fauna] for human-centred needs. The devil of such a system lies in its followthrough through political and financial instruments. This has led to promoting some of the worst forms of production and consumption across the globe. Case in point, the World Bank has been critiqued recently for subsidizing factory farming, which stands to undermine the [climate change mitigation goals laid out in the] Paris Agreement.”
The effects of such policy pushes are clear. “As of today, animal agriculture is the single largest industrial contributor to greenhouse gas emissions—with livestock rearing comprising 14.5% of total emissions,” says Lakshmi Venkataraman, Campaign Manager at Humane Society International. “The biodiversity losses that are happening today are also one of the largest side effects of industrial animal agriculture.”
This is possibly why even though the issues of biodiversity losses and climate change has been on the agendas of international summits for decades—with the 1972 Stockholm Declaration being the first international environmental conference to address the challenge of preserving and enhancing the human environment—the statistics indicate that the world has failed to reach a satisfactory result when it comes to the protection of animals.
The IPBES Global Assessment Report on Biodiversity and Ecosystem Services finds that the average abundance of native species in most major land-based habitats has fallen by at least 20% since 1900. More than 40% of amphibian species, almost 33% of reef-forming corals, and more than a third of all marine mammals are threatened by anthropogenic activities.
There remains a lack of urgency surrounding this phenomenon. At the recently concluded 26th UN Climate Change Conference of the Parties (COP26) held in Glasgow, parties and world leaders came together to accelerate climate action. The twin crises of climate change and biodiversity loss were one of this year’s main themes—providing an important forum to discuss the issue of animal protection amidst climate emergencies. Given the clear links between animals and climate change the issues discussed at COP26 revolved around intensive reducing meat and dairy production, promoting plant-based food, and the significant role of animals in capturing carbon from the atmosphere. Yet, they “comprised less than 5 percent of all official negotiations [at COP26] and less than 10 percent of side events.”
Such limited conversations—both in terms of volume and topics covered—indicate a lack of serious attention to this topic. What is equally concerning is that even at COP26, an international forum defining the way forward for climate action, the animal welfare measures discussed were limited to preserving their instrumental value to human life.
Why Is It So Easy to Impact Non-Humans at Scale?
At the international level, environment law declarations are soft law instruments that states cannot use to induce other states to conform to without their consent. As non-legally binding instruments, the success of a treaty is dependent on the will of the participating states to comply with them.
In addition to that, parties to different conventions are mandated to conserve their biological resources within specific constraints. Language such as “as far as possible and appropriate”, “undertake”, “promote”, and “encourage” are unmeasured qualifiers, which apply differently for developed and developing nations. Giving parties the flexibility and leverage to evaluate these measures on their own terms does little to protect animal welfare, the impoverished relative of already poorly implemented international environmental law and policy.
When it comes to the domestic context, things change. “From a legal systems point of view, India has historically shown promise for some very progressive laws early on,” says Sood.
On the face of it, this seems true: Article 51A(g) of the Constitution casts a duty on all the citizens of India to practice compassion for the environment and all living creatures and to protect them. In addition to that, Sections 428 and 429 of the Indian Penal Code, 1860, penalize killing, poisoning, maiming or rendering useless any animal or animals including stray animals. Section 11 of The Prevention of Cruelty to Animals, 1960 lists down several acts of cruelty against animals too. Section 9 of the Wildlife Protection Act, 1972 prohibits the certain hunting of wild animals. In 2014, in Animal Welfare Board of India v. Nagaraja and Ors, the Supreme Court extended Article 21 (the constitutional right to life) to animals.
“There are also cases of both the Ganges and Yamuna rivers being given legal rights for their protection and conservation,” adds Sood. “Yet, in a place like India, it is the lack of legal implementation that is the impediment [to protecting animal life and mitigating the effects of climate change]. This is alongside the strong financial and political push to maintain this status quo.”
The big push for #PalmOil by the GOI in NEI region needs to be dealt with extreme caution. Stakeholders are diverse, the biodiversity is fragile & ecological politics in the region volatile. It might be a ‘game changer’, but am afraid not necessarily for the right reasons! (2/2)
— kaustubh (@kaustubhdeka) August 21, 2021
Venkataraman agrees that India’s laws are robust in several aspects, but adds that they remain in the welfare, and not in the rights paradigm. “I would argue that animals do not have ‘rights’ in India [in the way that rights are envisaged for humans] because a right essentially acts as a shield against a wrong by someone else. The core way to enforce that right is when a person can go to court to defend it. As long as we have an instrumental relationship with animals that commodifies them for material gain (as in today’s food production system), animals will not have rights. In this instrumental paradigm, we can only incrementally increase their welfare. In order for animals to have ‘rights’, we have to move to a paradigm that recognizes their inherent worth, outside of what benefit they can provide us. This requires completely rethinking our relationship with animals for food.”
This ambiguity is seen in the preamble to the Prevention of Cruelty Animals Act, 1960, which states that it aims to “prevent the infliction of unnecessary pain or suffering on animals.” Such legislations weigh this suffering against the costs borne and benefit received and accordingly designate it as necessary. Unnecessary suffering is defined as that which is morally unacceptable, in that it is excessive or preventable. It is the result of procedures that fail to yield important benefits for humans or nonhumans, a product of thoughtless or faulty experimental designs. A case in point: using animals to test products.
Such an approach is reflective of welfarist measures. The result of such principles: a swathe of development practices that harm animals and accelerate climate shifts. On the other hand, from an animal rights perspective as noted by Sood, “animals, of course, undergo needless suffering [at scale], which we as humans living in the Anthropocene may deem as ‘necessary’. For example, 200 million animals are killed for food everyday.”
Joining the November 2018 statewide ballot: among other things, California would be a mandatory “cage-free eggs” state starting in late 2021. pic.twitter.com/hiQalgCKe1
— John Myers (@johnmyers) June 22, 2018
Legal systems like these have normalised the huge environmental costs of animal agriculture. Venkataraman adds that, “there needs to be sufficient public awareness and appropriate behavioural incentives to effect change, because law is ultimately a reflection of our society. Today, the greatest animal suffering occurs in industrial food production. The only way to simultaneously mitigate climate change and improve animal welfare is to significantly reduce the consumption of animal foods and move towards plant-based foods, and to improve the welfare standards of animals currently raised for food production. As long as we produce animals for food at scale, the paradigm of necessary and unnecessary suffering will exist.”
So, Are ‘Non-Anthropogenic Legal Systems’ Foolproof Solutions?
Given that animal’s lives and climate change are so intertwined with human activities, non-anthropogenic legal systems certainly seem like promising solutions. One example Sood recalls is the Nonhuman Rights Project, a civil rights organisation from the United States “dedicated solely to securing rights for nonhuman animals.” Aside from this, few other systems exist at the scale needed. Much of this has to do with the nature of the Anthropocene itself—where humans are the stars of the natural world.
“The idea of a human-centric approach is so central to human existence, and by extension, legal systems, that even when we do operate within the idea of a non-anthropogenic legal system, we do so to offer its underlying benefits to human beings themselves,” argues Sood. “Even the Ganges and Yamuna were given some human rights on the basis that they were ‘worshipped by Hindus’ and that they sustain communities ‘from the mountains to the sea’. While the Paris Agreement offers a good first step to protect the environment and avert a climate crisis, its basis very much sits on the need to protect nature for human beings to thrive.”
In this light, legal systems need to address this issue keeping in mind the urgency and unique challenges the Anthropocene brings with it. “A legal system that bridges the intersectionalities of the human experience with all aspects of its environment may be a promising path to follow. Because of the resource intensive nature of animal production, from a social justice perspective, this means that while there is enough food to feed the global population, more than 800 million people go hungry everyday. From a human and labour rights perspective, meat packaging and processing consistently rank as one of worst jobs to have. The road ahead has to be one that offers an equitable and Just Transition to move towards a system that is good for all—humans, climate, environment.”
The human and labour rights frontiers of the Anthropocene are especially important to consider in India, where the fundamental rights of many Indian citizens have only been partially maintained by the State. In India, the intersection of caste, religion, and patterns of food consumption must be interrogated in these debates on sustainable development.
For example, there is vocal opposition to the beef industry on various international climate fronts. Yet, in India, this opposition to the industry largely exists for caste-based political and religious reasons, often with deadly consequences. This kind of rhetoric has little to do with climate action, argues Venkataraman. “This is a particular brand of Brahminical vegetarianism [geared towards cow protection for religious and economic reasons] advocated by some animal welfarists, that instead harms the Dalit and Muslim communities who depend on animal labour. This brand of advocacy harms vulnerable communities and animals.”
#ExpressOpinion | When anti-cruelty laws don’t protect animals and only harm humans
— Express Opinion (@ieopinion) March 26, 2021
Yet, the irony here is that the beef industry in India cannot exist without the support of the ‘non-violent’ dairy industry. Each time a male calf is born or a female cow is no longer able to produce milk, they become fodder for the beef industry. “If there is no practical difference between the dairy and beef industries, there is no significant difference between vegetarianism and meat consumption, at least from an animal advocacy point-of-view,” argues Venkataraman. “Personally, I believe the approach we need to take [to account for human rights and animal rights] is to actively speak out against this Brahminical brand of vegetarianism. We need to strive towards a more inclusive and non-sectarian brand of advocacy that takes into account the interests of vulnerable caste groups, Muslims, and animals. One group’s interests must not come at the expense of another’s. The rights of humans and animals in the context of food are not irreconcilable, even if they may seem so. We must make every effort to ensure they go hand in hand.”
The International Futures of Animal Rights
Nature is constituted of systems and processes that transcend borders. And so, the problem of cruelty against non-humans is a transnational one. To that end, various international institutions such as the International Union for Conservation of Nature have adopted measures at the international level to guarantee a better quality of life to non-human animals and other components of the ecosystem.
Efforts are also on the international front to criminalize acts against the environment and a fifth international crime, ‘ecocide’, which translates to ‘killing our home’, was recently proposed. In June 2021, an Independent Panel of Experts (IEP) defined the term as “unlawful or wanton acts committed with the knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”
Classifying destruction of the environment as an international crime may not per se provide for animal rights. But, doing so empowers the concept of ecological citizenship, which entails the recognition of the right that a non-human animal has to live safely in its natural environment. Doing so challenges the perception of the complete power of humans over a ‘lifeless’ nature. It may also prevent inter-species justice against speciesism and anthropogenic welfare measures carried out by humans. That the concept may gain traction is likely—it is soon to be incorporated as “Article 8 ter” of the Rome Statute of the International Criminal Court (ICC).
Yet, while the introduction of a concept like ecocide is welcome, it contains certain loopholes which reveal that the shift towards a non-anthropogenic legal approach is still incomplete. The definition states that only ‘unlawful or wanton acts’ shall be penalized, where wanton has been defined as “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.” The distinction between lawful and unlawful acts or what shall be the threshold of social and economic benefits remains unanswered. An anthropocentric cost-benefit analysis could sweep all destructive activities under the blanket of development or social and economic benefits.
But, there are glimmers of hope on the horizons of individual countries. The United Kingdom’s new animal welfare legislation, the Animal Welfare Sentience Bill, adds cephalopods (such as octopuses, squid and cuttlefish) and decapods (such as crabs, lobsters and crayfish) to the list of sentient beings protected under it. The grounds for offering protection are not what value do they offer to humans but their own intrinsic characteristic of being capable of feeling pain. This is a much-needed move to further animal welfare not on anthropocentric grounds, but on the basis of the intrinsic value of animals.
The threats of the very existence of humanity are apparent. The piecemeal approach currently being followed in favour of non-humans needs to be addressed. Thus, in such a case, a global model for animal rights shall ensure uniform compliance with the law, strict accountability and access to justice. Humanity has the insights to deal with such pressing issues and to move into a better world. Whether we manage to do so will depend on improved mechanisms of international law and governance.
Featured image: what marine waste looks like in the age of the Anthropocene; courtesy of Bo Eide (CC BY ND-2.0).