Academic journal article Duke Environmental Law & Policy Forum

The Trans-Pacific Partnership and the Construction of a Syncretic Animal Welfare Norm

Academic journal article Duke Environmental Law & Policy Forum

The Trans-Pacific Partnership and the Construction of a Syncretic Animal Welfare Norm

Article excerpt

The Trans-Pacific Partnership (TPP) is transformative in its scope and ambition. Its twelve founding nations account for over 10% of the world's population (1) and 40% of global gross domestic product. (2) Six other nations have declared their interest or intent to join. (3) The TPP is centrally a trade treaty. But, its diverse chapters also provide a framework for managing corollary issues related to intellectual property and the environment. The focus of this article is how this constellation of provisions affects animal welfare in the Pacific Rim. The TPP does not specify the creation of cruelty statutes or the like in these countries. Rather, animal interests are implicit in the agreement's management of habitat integrity and trade in animal-based products. Advocacy groups, including the Sierra Club, argue that trade liberalization is an inherent threat to animal wellbeing. (4) The Asia-Pacific region is already home to one-third of the world's threatened species. (5) Increased incentives for commodity production could exacerbate resource depletion, especially in the context of emerging or developing economies with less exacting regulatory regimes. For example, palm oil production in Malaysia (a founding TPP nation) and Indonesia (also interested) has already led to significant habitat destruction for local animals, including megafauna such as the orangutan. (6) The most important risk factor for orangutans is land loss, which has removed over 80 percent of the species' habitable area in Borneo and Sumatra during the last two decades. (7) The status quo seems to only delay the possibility of extinction, rather than obviate these concerns. This article therefore questions the negative juxtaposition of the TPP with animal welfare. The communication mechanisms created by this novel regime make possible the development of an epistemic community with shared interests in ecological sustainability and humane use of animals. I argue that a constructivist perspective best predicts the evolution of the TPP and that the information-sharing procedures built into the environmental chapter provide a voice for animal interests. The open question remaining is whether anyone will listen.

The positioning of these animal trade provisions within the environmental chapter belies the usual tensions between these kin doctrines. Animal law and environmental law possess conflicting goals. The animal rights theorist is commonly concerned with the individual animal. Deontological and utilitarian justifications for animal rights begin with the unique intelligence or sentience of the discrete individual. That the evolved animal has a sense of self and future, or experiences pain or happiness, evidences their qualified form of agency or moral interests. To borrow the lexicon of Nozick or Dworkin, this animal personhood is a "trump" against the interests of other legal actors. (8) An animal's right to life or bodily integrity is pre-conditional to the property interests of the human. By contrast, the environmental law organization has an ecologic lens. Sure, animals should be protected from indifferent treatment. But so should an alpine forest. (9) The calculus for the environmental lawyer is the aesthetic or economic value of the animal situated in its environs. Migratory birds add hue and flow to the panorama of nature and function in a global ecosystem. But this external-oriented value does not depend on the factual existence of a specific species member. To this extent, the individual animal is fungible. The pressures of "population control" are only one tension point between animal and environmental lawyers. Notably, the anti-TPP Sierra Club is itself a defender of hunting. There is space for the divergent tropes of tree hugger and sportsman within an environmental paradigm.

But the connected problems of biodiversity loss and endangered species protection put the shared interests of animal and environmental law into clearer focus. …

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