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By Baleigh Brown, J.D. Candidate 2024, Florida State University College of Law
I. Introduction
The Convention on Animal Protection for Public Health, Well-Being, and the Environment (CAP or the treaty) is a draft treaty crafted by a team of lawyers and academics following the passage of Resolution 101C by the American Bar Association House of Delegates in February 2021.[1] The Resolution urges all nations to negotiate an international convention focusing on the protection of animals and establishing standards for the proper care and treatment of all animals to protect public health, the environment, and animal well-being.[2] On November 16, 2022, a second draft of the treaty was published.
While other treaties exist that touch on the subject of animal welfare, CAP enhances those standards by enlarging the scope of animal protection and focusing on animals at the individual level to prevent future pandemics that could arise out of the negligent handling and mistreatment of animals. The Preamble explains:
[T]he failure to account for the well-being of animals is a risk factor for the emergence and transmission of zoonotic and other infectious diseases, such as COVID-19, and . . . this risk can be mitigated through coordinated international action integrating public health, animal health, and environmental health in accordance with the One Health approach . . . .[3]
The One Health approach is a public health perspective that recognizes the connection among human health, animal health, and environmental health as the optimal method to address and prevent the outbreak of diseases that pass from animals to humans.[4] These types of diseases are known as zoonotic diseases and account for three out of every four new infectious diseases in humans.[5] Examples of zoonotic diseases include COVID-19, HIV-AIDS, Lyme Disease, and Ebola.[6]
II. Treaty Structure
a. Preamble
The second draft of the treaty consists of thirty-one articles, ranging from fundamental principles to procedures regarding report collection. The treaty can be divided into three main parts: the preamble, substantive provisions, and procedural provisions.
The Preamble recognizes animals as having worth beyond the benefit they may provide to humans, which is vital to understanding how to properly care for animals and protect them. Additionally, the Preamble recognizes that animal well-being has positive effects on the environment and on public health, such as eliminating the spread of disease, and that the environment can have negative effects on the animals themselves.
b. Substantive Provisions
The next section of the treaty consists of substantive provisions. Article 1 contains five fundamental principles that make up the heart of the treaty. These five principles emphasize the idea that animals’ individual and collective well-being are vital to environmental protection and conservation, as well as the prevention of disease. By establishing this link between animal health and human health, as in the One Health approach, a responsibility is placed upon contracting parties, or States, to take proper actions in regulating human interaction with animals.
After a definitional section in Article 2, Article 3 outlines States’ obligations towards all animals. Article 3 seeks to ensure that no animals are subjected to cruel acts or conditions, or to painful killings. It integrates the protection of animal well-being into programs and policies of States, including the environmental, public health, agricultural, educational, and trade sectors. States must develop policy measures to reduce adverse impacts on animal care and well-being. Also included in this Article is a principle of non-regression to ensure that States’ existing policy measures are not weakened or reduced in a way that will diminish animal well-being.
Article 4 places an obligation upon States to be responsible for the proper care of animals, not only to prevent harm to animals, but to prevent harm to humans by safeguarding against the possibility of disease outbreak.
Article 5 consists of State obligations towards wild animals. Legislative, administrative, and policy measures should conserve and protect wild animals in their habitats and should promote non-lethal management methods that involve the least amount of suffering for targeted and non-targeted wild animals.
Article 6 illustrates the obligations placed upon States to minimize the emergence and spread of pathogens and antimicrobial resistance by taking steps to minimize their development and exposure.
Article 7 provides protections for indigenous and local communities. When consideration is being given to legislative, administrative, or other policy measures that may affect cultural values, practices, institutions, ways of life, local food sources, or economic development of indigenous peoples and local communities, States shall consult such affected groups regarding how to implement the treaty.
Article 8 provides that agreements between States regarding the trade of live animals or animal parts must ensure the well-being of those animals. States that trade with other States in this regard shall encourage those that have legal frameworks with lower standards of well-being to adopt standards consistent with the treaty. This Article includes a provision for non-regression; that is, no State shall weaken or reduce its levels of protection for animal well-being for trade or investment.
The final article included in the substantive provisions of the treaty is Article 10, which focuses on technical and scientific cooperation between States in the field of animal well-being, in accordance with the best available science. Academia, non-governmental bodies, nationals and relevant authorities, indigenous peoples and local communities, and other stakeholders should be participants.
c. Procedural Provisions
The latter half of the treaty contains procedural guidelines, including the collection of reports from States, dispute resolution, reservation, signature, ratification, acceptance, and approval, accession, entry into force, and withdrawal. For example, Article 24 of the treaty provides for resolution of disputes that may arise between States. Article 25 explains that the provisions of the treaty are not subject to general reservations by the parties. Article 26 allows for the treaty to be open for signature by all States and any regional economic integration organization. Article 27 discusses how the treaty shall be subject to ratification, acceptance, or approval by any parties. Article 28 allows the treaty to be open indefinitely for accession. The act of accession is when a State accepts the offer to become a party to the treaty that was already signed by other States. Article 29 describes how and when the treaty shall enter into force. Finally, Article 30 outlines how States may withdraw from the treaty.
III. Practical Functions of the Treaty
In order for CAP to be politically feasible, it was designed to focus not solely on animal rights but on animal welfare as a whole. While Western countries like the United States and Canada have a basic national law or local constitutional principle focused on animal welfare, many States, such as Africa and Asia, have no existing animal welfare legislation.[7] Germany is the only country in the world that has a basic national law, a national civil code provision that recognizes the sentient nature of animals, and a national constitutional principle, which recognizes a duty of the State to protect the welfare of animals.[8] CAP is an effort to protect animal welfare at the international level by creating a method for a State to implement better animal welfare standards in its own nation.
a. Existing Protections
Many current conventions focus only on animals at the species level. CAP focuses on animal welfare at the individual level and enhances existing protections. For example, the Convention on Migratory Species currently provides protections to habitat conservation of migratory animals.[9] CAP, as illustrated by Article 5, provides for the conservation and preservation of wild animals regardless of whether or not they are migratory.[10] Similarly, the Convention on International Trade of Endangered Species (CITES) protects wildlife only in certain contexts and takes no steps to protect animals in domestic trade.[11] CAP would expand upon CITES by protecting all animals in the context of trade, including domestic animals, not just those endangered.[12]
Some international and intergovernmental organizations provide some protection for animal health and welfare but have loopholes that CAP would close. For example, the World Organisation for Animal Health has sanitary and welfare standards for animals;[13] however, these standards are nonbinding upon parties. CAP would enhance these standards by making them binding.
b. Protocols and Enforcement
Provisions regarding protocols are set forth in Articles 21 and 22. Prospective protocols could include expanding existing standards of animal well-being or banning any cruel practices regarding the care of animals. An example of a ban would be to outlaw the use of animals in cosmetic testing, as Mexico did in September 2021.[14]
Finally, the treaty’s enforcement relies upon civil societies within States. These organizations can bring pressure to enforce the treaty in their nation, which in turn can lead to governments enforcing the treaty in the international community. Self-reporting mechanisms included in the provisions of the treaty also serve to pressure States to be held accountable to adopt standards of animal welfare. The trade provision of the treaty is arguably the strongest enforcement element, as this provision will allow States to restrict trade if the circumstances call for such measures.
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[1] The Convention on Animal Protection for Public Health, Animal Well-Being, and the Environment, https://www.conventiononanimalprotection.org/the-cap-treaty [hereinafter CAP].
[2] Id.
[3] CAP, supra note 1, at preamble, https://www.conventiononanimalprotection.org/the-cap-treaty.
[4] The One Health Approach, https://www.conventiononanimalprotection.org/one-health-approach.
[5] Id.
[6] Id.
[7] Global Animal Law, Animal Legislations in the World at National Level, https://www.globalanimallaw.org/database/national/index.html.
[8] Id.
[9] Convention on the Conservation of Migratory Species of Wild Animals, art. 1, https://www.cms.int/sites/default/files/instrument/CMS-text.en_.PDF.
[10] CAP, supra note 1, at art. 5, https://www.conventiononanimalprotection.org/the-cap-treaty.
[11] Convention on International Trade in Endangered Species of Wild Fauna and Flora, art. 7, https://cites.org/eng/disc/text.php.
[12] CAP, supra note 1, art. 5, https://www.conventiononanimalprotection.org/the-cap-treaty.
[13] World Organisation for Animal Health, https://www.woah.org/en/what-we-do/standards/codes-and-manuals/.
[14] Humane Society International, Mexico Becomes First Country in North America to Outlaw Animal Testing for Cosmetics, https://www.hsi.org/news-media/mexico-becomes-first-country-in-north-america-to-outlaw-animal-testing-for-cosmetics/.