Animal sentience within the law – an international perspective by Grace Hudson

Wednesday, June 26, 2019

Animal sentience broadly refers to the ability of animals to feel, for example, by experiencing pain, pleasure, or suffering. Scientific literature generally accepts that all vertebrate species are sentient, and increasing research shows that invertebrate species are also sentient.[1] As early as the 1800s, Darwin proposed that some animals were capable of self-consciousness, a trait previously assumed to be solely human. Research has since shown that animals including dolphins, elephants, and magpies are capable of mirror self-recognition.[2] Despite the extensive research showing animals’ capabilities to feel, legislation both domestically and internationally often does not recognise animals as sentient beings. Yet legislating animal sentience is of paramount importance in order to advance animal welfare.


In 2009, the European Union (EU) amended the Treaty on the Functioning of the European Union (TFEU) to recognise animals as “sentient beings”.[3] The TFEU prescribes that when formulating and implementing policies, the EU and its member states must pay full regard to animal welfare.[4] This is an important provision as it sets minimum standards for EU members to adhere to when legislating.  Member states France and Belgium have gone further by recognising the sentience of animals in domestic legislation. The French Civil Code states “[a]nimals are living beings gifted with sentience”[5] and the Animal Welfare Code of the Wallonia region in Belgium states animals are “sentient beings”.[6] A number of other member states, namely Austria, Czech Republic, Germany, Netherlands, and Spain (Catalonia region) have legislation to explicitly state that animals are not “things”.[7] Germany has also added the words “and animals” to a provision stating “[t]he State shall protect the foundations of life … by legislation”.[8]


However, these stated protections have caveats in each case: Despite declaring animals as “not things”, they also prescribe that, where there is no statute to the contrary, animals shall effectively be subject to the provisions on “things”.[9] This highlights the importance of implementing provisions specifically to protect animals. Without positive rights, legislation simply giving animals the status of “not things” becomes less valuable. Nevertheless, such a status is an important foundation for the implementation of further animal welfare legislation.


Unfortunately, the United Kingdom’s position regarding animal sentience within the law remains indeterminate with the potentially imminent departure from the EU. Despite the Draft Animal Welfare (Sentencing and Recognition of Sentience) Bill 2017 and the Government’s alleged commitment to ensuring that animal sentience is reflected in UK law following Brexit, it is yet to be seen how the Environment, Food and Rural Affairs Committee’s recommendations on the draft bill will be implemented following pre-legislative scrutiny.[10]


Despite not being part of the EU and thus not subject to Article 13 TFEU, European countries Switzerland and Moldova have taken steps towards protecting animal welfare by introducing provisions similar to those referred to above that give animals the status of not “things” or “objects”. [11] European countries Albania, Montenegro and Belarus do not have any animal welfare legislation in place.[12]


Outside of Europe, the position is disappointing. Only Canada, Colombia, and New Zealand recognise animals as “sentient” in law.[13] Azerbaijan goes some way by explicitly stating “animals do not constitute tangible property”[14], while India states “it shall be the duty of every citizen of India … to have compassion for living creatures.”[15] The majority of African countries do not have any animal welfare legislation in place, and those that do merely have basic protections that do not recognise the sentience of animals.[16] There are jurisdictions in each continent which do not have any animal welfare legislation, including a vast number of Asian countries, including China.[17] China’s lack of animal welfare legislation and controversial traditions have been prominent in worldwide news. As the world’s most populous country and thus a nation with influential power, arguably China has a duty to develop this area of law.


Nevertheless, the aforementioned animal welfare laws have limited value without enforceability and accountability mechanisms. As such, despite certain countries appearing ahead of others in terms of animal protection, in reality their position is determined by a number of factors. It is clear on a global scale that countries have far to progress to have the law reflect the scientific research.

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