13.1 Introduction
A year after officially declaring COVID-19 a pandemic, the Director-General of the World Health Organization (WHO), Dr Tedros Adhanom Ghebreyesus, added his voice to those of over two dozen world leaders in calling attention to how the outbreak had ‘exploited [the] weaknesses and divisions’ among states and stressing the need for leaders to negotiate a ‘new international treaty for pandemic preparedness and response’.Footnote 1 As is the case today,Footnote 2 the great weight of evidence at the time traced the emergence of COVID-19 to a live animal market in Wuhan, China,Footnote 3 where a vast array of wildlife was known to be held in cramped, unsanitary, stress-inducing conditions, conditions widely believed to have facilitated the spread, mutation, and subsequent spillover of the novel coronavirus into humans.Footnote 4 With SARS-CoV-2 representing yet another in a long line of zoonotic disease pathogens, or those that spill over from animals into humans and represent roughly 75 per cent of all diseases that afflict humankind,Footnote 5 it comes as little surprise that the joint letter cited the need for a One Health approach to inform how such an agreement could safeguard the health of humanity for generations to come.Footnote 6 Often conceived as a diagram featuring three distinct yet overlapping spheres,Footnote 7 the One Health model attests to the interconnectedness of human, animal, and environmental health. In this vein, what the paradigm reveals is that safeguarding the health of any one realm – whether human, animal, or environment – requires a holistic approach, as the interests of each is inextricably intertwined with those of its counterparts. Effectively blurring the conceptual boundaries that it prescribes, the One Health concept illustrates the inherent inadequacy, and even danger, of attempting to secure the health of any one sphere absent complementary efforts to buttress the health of all.
Despite the paradigm being cited as the foundation for the pandemic treaty talks that have since emerged and, as of the date of this writing, have stalled,Footnote 8 it remains to be seen whether the final form of the WHO Pandemic Agreement, if agreed upon by WHO member states, will prohibit, much less regulate the kinds of animal use, confinement, and ill-treatment believed to have given rise to the COVID-19 pandemic, not to mention several other deadly zoonotic disease outbreaks to date. Indeed, if a concluded WHO Pandemic Agreement resembles its present form, its lack of explicit obligations with regard to securing the health and well-being of animals leaves a glaring if indefensible hole in the ‘robust international health architecture’ that the WHO and world leaders jointly called for years before.Footnote 9 Without due regard paid to how humankind’s use of and interactions with animals continues to occasion the emergence and reemergence of novel and known diseases, the world will have forfeited a critical opportunity to go beyond preparing for and responding to pandemics by preventing the conditions that lead to outbreaks at the start.
Drafted in the midst of the COVID-19 pandemic by global animal law scholars and attorneys, including the author of this chapter, the Convention on Animal Protection for Public Health, Animal Well-Being, and the Environment (CAP) was designed to fill this void by securing the braided – and inextricably intertwined – interests of humans, animals, and the environment that they share.Footnote 10 As part of its framework, the draft treaty seeks to institute binding prohibitions on and regulate interactions with and uses of animals that pose health risks within and beyond the zoonotic disease context.Footnote 11 In addition to containing protections that apply to all animals,Footnote 12 the CAP also features provisions specific to free-roaming wildlife and animals under direct human control,Footnote 13 thereby allowing for a more nuanced approach to safeguarding their interests. Owing to the oft-cited difficulty of holding states accountable to their obligations under international law,Footnote 14 the CAP advances trade-based incentives and other measures to encourage contracting parties to hold their counterparts accountable, as well as to incline non-party states to ratify the Convention.Footnote 15 By providing for the development of future protocols, or sub-agreements among contracting parties to it,Footnote 16 the CAP envisions more robust animal protections taking root and further inuring to the benefit of the environment and humankind. Given the CAP’s prospective contribution to the much-neglected sphere of animal health, this chapter explores the promise the draft treaty holds to engender a One Health-centred model, either by complementing the thrust of the WHO Pandemic Agreement or by filling in the void it would have occupied.
To this end, Section 13.2 of this Chapter interrogates how humankind’s use of and interactions with animals precipitated the emergence of SARS-CoV-2 alongside other concerning zoonotic disease pathogens that garnered scant attention in the midst, or ‘shadow’, of the COVID-19 pandemic. Bookending this examination are reflections on the ‘narratives’ that the World Health Organization sought to construct upon declaring COVID-19 a pandemic in March of 2020 and in calling for a pandemic instrument to be negotiated around the One Health concept the following year. To this end, Section 13.2 captures how such narrative constructions were used to shape public sentiment and to encourage people to consider the agency that they possessed to influence the outcome of a global pandemic narrative that they may have otherwise felt they had been written into. From here, Section 13.3 takes stock of how the WHO Pandemic Agreement, if entered into force, would provide for the interests of animals as part of its recognition of the One Health concept. In doing so, Section 13.3 also highlights core issues that the WHO instrument fails to address in this vein.
In consideration of the void left by WHO Pandemic Agreement, Section 13.4 offers an overview of the origins and evolution of the CAP. In doing so, it charts the CAP’s overarching framework, preamble, and fundamental principles before addressing how its substantive provisions would help achieve the promise of the One Health model given its contributions to the oft-neglected sphere of animal health. In addition, Section 13.4 highlights the CAP’s noteworthy logistical and operative elements, including its trade provisions, and addresses how the treaty, if entered into force, would relate to current international frameworks and growing norms around animals. In doing so, the Chapter calls attention to potential pathways and prospects for the CAP to become a global foundation for animal protection. In conclusion, Section 13.5 returns to the grounds for world leaders’ call for a pandemic treaty instrument to be negotiated around the One Health concept and observes how the CAP would not only reduce the risks of future pandemics but also provide for a more compelling, if complete, post-pandemic story by virtue of seeing animals written into international law as sentient beings as opposed to continue being written off.
13.2 Coming to Terms with the World’s Pandemic Story
13.2.1 In Medias Res
It was near the end of his opening remarks during a virtual press conference on 11 March 2020 that Dr Ghebreyesus lamented that a single word had managed to seize the world’s attention.Footnote 17 As Director-General of the WHO, Ghebreyesus had just briefed the media on the concerning rise in COVID-19 clusters.Footnote 18 Outside China, cases had increased thirteen-fold.Footnote 19 The number of affected states had tripled to well over a hundred.Footnote 20 Globally, more than 100,000 infections had been documented, with some 4,000 lives already lost.Footnote 21 It was against this meteoric rise in epidemics that Ghebreyesus disclosed the WHO’s official position that COVID-19 had crossed a conceptual threshold to become a ‘pandemic’,Footnote 22 the one word he feared would dictate how the narrative would unfold from that moment on.
While the pronouncement was characterised by some media outlets as largely symbolic,Footnote 23 Ghebreyesus stressed it was one the WHO did not issue lightly given the gravity of its impact. Speaking to this concern, Ghebreyesus observed how the term had the power to not only incite fear but also instil a sense of resignation, if not defeatism.Footnote 24 Although Ghebreyesus did not expand upon the remark, its subtext was clear. In expressing concern that the WHO’s position might incline the public to consider the ‘fight [to be] over’, the Director-General laid bare the distinction, at least with regard to perception, between epidemics and pandemics,Footnote 25 with the etymological root of the latter, pan demos, literally translating to all people.Footnote 26 To employ a topical metaphor in light of Ghebreyesus’s repeated appeals to keep fighting,Footnote 27 the distinction between epidemics and pandemics might be conceived as one between localised battles and a world war. While the former may be beyond one’s direct experience, the latter offers no retreat or safe harbour. But of course, the reality of pandemics proves far more bleak. Indeed, neither pacts of non-aggression nor declarations of neutrality can prevent a widespread disease from invading a nation’s borders. Unlike epidemics, then, pandemics affect all people. And insofar as they may be considered wars, they are ones that cannot be avoided – only survived. In addition to the WHO’s admission that the world had never witnessed a pandemic that could be controlled,Footnote 28 further complicating efforts to contain the disease was the unprecedented nature of the outbreak itself. Not only did SARS-CoV-2 constitute a novel pathogen, but the world, Ghebreyesus stressed, had also never been forced to confront a coronavirus-based pandemic.Footnote 29
While the rise in both cases and number of nations affected attested to the practical difficulties that lay ahead, what Ghebreyesus nevertheless underscored was that numbers alone failed to ‘tell the full story’.Footnote 30 In stating that the WHO could not say ‘loudly enough, or clearly enough, or often enough [that] all countries [could] still change the course of [the] pandemic’,Footnote 31 what Ghebreyesus sought to impress upon the public was how the story of the pandemic – that is, of all people – was still in the process of being written and that their leaders had the power – both the literal and figurative authority – to shape how that story would end. But just as the Director-General was calling upon leaders to take steps to mitigate the spread of COVID-19, forces were already working to plot the conflict back to its origins in order to shape the dominant narrative, assign the roles of its pro- and an-tagonists, and construct the moral of the story writ large.Footnote 32
13.2.2 Plotting the Backstory of the Pandemic
As fraught with consequences for public sentiment as it may have been to declare that the world was in the midst of a pandemic, the promotion of competing narratives to explain the origins of the novel virus proved concerning as well. Several accounts – some of them pure fiction – had been heavily promoted to become the dominant narrative in certain circles. One such theory asserted that SARS-CoV-2 had been leaked from the Wuhan Institute of Virology, a belief that still finds purchase given the facility’s close proximity to where the first cases were catalogued, as well as the facility’s multiple failures to follow through on biosecurity protocols.Footnote 33 Another widely disputed theory contended that the coronavirus had been engineered as a bioweapon by the People’s Liberation Army of China.Footnote 34 Yet another asserted that it had imported into China via frozen food products,Footnote 35 the implication being that while China may have witnessed the first outbreaks, it was neither the source of, nor responsible for, the coronavirus’s emergence. While a definitive answer as to the origins of the pandemic may never be established, much less agreed upon in light of the political interests involved,Footnote 36 the great weight of evidence continues to point to Wuhan’s Huanan Wholesale Seafood Market as the epicentre of the outbreak, or where the novel virus spilled over from animals into humans.Footnote 37
Serendipitously carried out between May of 2017 and November of 2019, a pre-outbreak study tracing the source of a tick-borne disease to one of Wuhan’s live animal markets offered a compelling dataset for scientists to pore through.Footnote 38 Substantiated by data gleaned from monthly visits to each of Wuhan’s four live animal markets, where wild animals were known to be sold as food or exotic pets, what the report illuminated was that roughly a third of the animals bore tell-tale signs of having been poached, such as leg-trap and gunshot wounds, with others likely having been bred in captivity.Footnote 39 What the overall picture revealed was that the live animal markets were host to a diverse array of species, many of which were known hosts of disease-bearing parasites and zoonoses.Footnote 40 All the more concerning was that practically all of the captive animals were stacked in cages and in poor condition, with the Huanan market featuring seven such wildlife shops.Footnote 41
Post-outbreak reports also pointed to the Huanan Wholesale Seafood Market as the most likely source of the outbreak. For example, a joint WHO-China review of COVID-19 cases associated 55 of the earliest 168 documented COVID-19 cases with the site.Footnote 42 In addition, the most comprehensive study to date found two lineages of the pathogen there,Footnote 43 a detail that suggests the virus had jumped not once but twice from animals into humans and undercuts the view that the market was merely a super-spreader site.Footnote 44 Furthermore, a spatial analysis conducted within the market returned numerous positive samples of the pathogen, with at least one stall returning multiple positive results and a metal cage in a back room also featuring traces.Footnote 45 Notably, the stalls in this section of the market were associated with the sale of wildlife,Footnote 46 with many of the animals, such as raccoon dogs, known to be highly susceptible to SARS-CoV-2.Footnote 47 While the authors of the report could not definitively rule out the possibility that the virus had come from another source, the cluster of cases put the odds at 1 in 10,000,000.Footnote 48 Although every outbreak proves unique, the trope that the COVID-19 outbreak fell into, however, was common; so much so that it might be described as merely a variation on a theme.
13.2.3 Variations on a Common Theme
In determining the Huanan Wholesale Seafood market to be the epicentre of the COVID-19 outbreak, the authors of the report buttressed their conclusion by observing how the trade and sale of captive wildlife in such markets have proven to be a ‘common theme’ in spillover events.Footnote 49 Indeed, it was a variation on this theme that gave rise to the first documented case of Severe Acute Respiratory Syndrome (SARS) years before.Footnote 50 Claiming roughly 1,000 lives across 29 countries,Footnote 51 the 2002 SARS epidemic was likewise caused by a coronavirus infection, with the pathogen traced to masked palm civets sold at a live market.Footnote 52 Such markets have proved hotbeds for zoonotic disease spillovers not just because they feature wildlife but also because the animals are often held in cramped, unsanitary, stress-inducing conditions. Indeed, wild animals in these settings have been documented suffering from numerous ailments, such as dehydration, open wounds, missing limbs, and so on.Footnote 53 With a diverse array of species kept in close proximity, if not stacked one on top of the other, leading to an exchange of air, faeces, and urine, the stress induced by these unhygienic conditions further compromises their immune systems, increasing chances of the spread, mutation, and emergence of novel viruses and other pathogens.Footnote 54 This concerning mistreatment has seen live animal markets characterised as ‘cauldron[s] of contagion’.Footnote 55
Insofar as such spillover events represent a ‘common theme’ in a recurring narrative, one might be tempted to describe COVID-19 pandemic as having gone according to script, which, in many ways, it did. With its plot concerning the spread and response to a pandemic in an increasingly globalised world, the 2011 film Contagion prophetically – one might be tempted to say if such outbreaks were not so routine – dramatised almost this exact scenario: the transmission of a novel virus from bats to animals raised for food and ultimately into humans via live animal market-type conditions.Footnote 56 Although MEV-1, the fictional pathogen in Contagion, was not a coronavirus, it was based on two real-life viruses, Hendra and Nipah, which affect equines and pigs, respectively, and are likewise transmitted by bats.Footnote 57 Although the film saw its novel virus mutate in a pig as opposed to captive wildlife, the encroachment of humans into animals’ habitat, whether to clear land to farm domesticated animals or otherwise, has led to numerous viral spillovers events and remains a leading theory as to how SARS-CoV-2 emerged as well. Speaking to the conditions that led to the COVID-19 outbreak, the film’s director, Steven Soderbergh, stated, ‘Everybody we talked to when we were preparing that film, every expert, when we asked them how will the next one start, to a person, they said, wet market, Asia, there’s probably going to be a bat involved. Literally all of them.’Footnote 58 Echoing this sentiment, Scott Burns, the film’s screenwriter, agreed that no crystal ball was necessary.Footnote 59 In consulting with epidemiologists as to whether the prospect of a pandemic as contemplated by their script was within the realm of possibility, their answer was that the question of a pandemic was not one of if but when.Footnote 60
While the purpose of the film was to capture, as a sociological study, how individuals and states would respond to such a crisis,Footnote 61 what Burns did not anticipate was how real life would fail to reflect the art they had intended to reflect real life. Put differently, what proved inconceivable was just how misguided, and even dangerous, responses by governments would be.Footnote 62 Of course, Contagion necessitated the conditions for a pandemic in order to dramatise its impact on society. Calling attention to the ability of states to prevent such outbreaks altogether, America’s top infectious disease expert, Dr Anthony Fauci, expressed incredulity as to how such markets could continue operating, stating, ‘It boggles my mind how[,] when we have so many diseases that emanate out of that unusual human-animal interface, that we don’t just shut it down’,Footnote 63 which, notably, China ended up doing,Footnote 64 although history suggests that the ban may only be temporary.Footnote 65
While Dr Fauci’s recommendation proves sound given the recurring if dominant theme of animal markets giving rise to novel pathogens, the world would be remiss to ignore the emergence of infectious diseases arising out of other human–animal interfaces and in other parts of the world. Indeed, multiple zoonotic disease outbreaks have been documented both in the midst, or ‘shadow’, of the COVID-19 pandemic,Footnote 66 as well as in its wake. In 2021, for example, the Indian state of Kerala witnessed an outbreak of Nipah virus, which features a 75 per cent mortality rate and is known to spread from fruit bats, its primary host, to pigs, as intermediate hosts, before infecting humans.Footnote 67 In 2021, severe Salmonella cases rose in the United States due to the keeping of wildlife as pets.Footnote 68 From its initial outbreak in May of 2022 to September 2022, over 60,000 cases of monkeypox, another deadly zoonotic disease, had been documented in 104 countries worldwide.Footnote 69 In that same year, the United States reported an outbreak of swine flu resulting from a child’s attendance at an agricultural fair.Footnote 70 Even after the WHO’s declaration that COVID-19 no longer constituted a global health emergency in May of 2023,Footnote 71 numerous outbreaks have continued to emerge. In November of that same year, Zambia reported an outbreak of anthrax, a bacterial disease that spills into humans via contact with ruminants, such as cows, goats, and sheep.Footnote 72 Yet another is an outbreak of psittacosis in late 2023 across Europe, with those who come into contact with birds, such as poultry workers, proving susceptible to contracting the deadly respiratory disease.Footnote 73 Regardless of whether these outbreaks occurred before, during, or after the COVID-19 pandemic, many continue to linger. For example, with the outbreak of a highly pathogenetic avian influenza in the United States in February of 2022, more than 1,000 flocks in 48 states have been affected, leading to the deaths of over 82 million birds and counting.Footnote 74 Having mutated to infect dairy cattle, the virus has spun off other variants and already spilled over into humans.Footnote 75
Although they have not become widespread enough to constitute pandemics, these localised epidemics nevertheless form the substance of a collective narrative, one that offers universal lessons if world leaders wish to turn the page on a recurring story. Notably, it was a year after uttering the lone word he feared would diminish the world’s resolve that Ghebreyesus echoed a dire warning in calling for a new chapter to be authored: the question of the next pandemic, he said, was not one of if but when.Footnote 76
13.3 The Proposed WHO Pandemic Agreement
13.3.1 A Clarion Call for Change
Adding his voice to those of over two dozen heads of state, Ghebreyesus, the first signatory in their joint letter, issued a clarion call for the negotiation of a pandemic treaty on 30 March 2021.Footnote 77 At the time, COVID-19’s death toll was nearing 3 million,Footnote 78 with roughly 130 million people having already been infected.Footnote 79 As tragic as the loss of life proved in and of itself, the pandemic had also given rise to global human rights concerns, ranging from the imprisonment of journalists and healthcare workers seeking to combat misinformation to the implementation of intrusive surveillance practices,Footnote 80 with marginalised groups bearing the brunt of harms.Footnote 81 As the joint letter attested, no one was spared. Indeed, the pandemic proved a difficult if much-needed reminder ‘that nobody is safe until everyone is safe’.Footnote 82 Calling out the fractures among states that COVID-19 had laid bare, the letter framed the pandemic as the greatest challenge the world had faced since the 1940s,Footnote 83 an allusion to the devastation wrought by World War II. In observing how states at the time embraced multilateralism as a means to meet the moment, the letter articulated how state cooperation was needed yet again if global health and security, among other shared aims, were to be realised.Footnote 84
Citing the need to protect future generations, the joint letter braided the continuing ‘fight’ against COVID-19 with a call for a ‘more robust international health architecture’, one grounded in the WHO with the purpose of serving to better ‘predict, prevent, detect, assess and effectively respond to pandemics’.Footnote 85 To this end, the letter underscored that the proposed agreement would recognise the One Health model, which, in affirming the interconnectedness of human, animal, and planetary health, would guide the treaty’s principle of ‘health for all’,Footnote 86 an echo of the signatories’ acknowledgement that none could be safe until all were safe. Although the letter made explicit mention of the need to contemplate the health of animals, nothing in the non-exhaustive list of provisions that a prospective accord might feature includes considerations for them.Footnote 87 This lack of detail as to what measures might buttress the sphere of animal health has created significant uncertainty as to the effectiveness of such a treaty in light of the proposition – one informed by the One Health concept – that none can be safe until all, including animals, are safe.
13.3.2 The Draft Agreement
It was in December of 2021 that prospects for a WHO Pandemic Agreement began to emerge.Footnote 88 It was during the second-ever special session of the World Health Assembly, comprised of all 194 WHO member states,Footnote 89 that the Intergovernmental Negotiating Body (INB) was formed.Footnote 90 With the Constitution of the WHO empowering the Assembly to adopt international agreements on matters within the WHO’s sphere of competence,Footnote 91 the INB was charged with constructing an agreement on ‘pandemic prevention, preparedness, and response’.Footnote 92 With the INB beginning its work in February of 2022, the prospect of an accord was heralded as a ‘once-in-a-generation opportunity to strengthen the global health architecture to protect and promote the well-being of all people’,Footnote 93 an allusion to the etymological roots of the term ‘pandemic’. To date, the INB has produced multiple drafts of the proposed treaty instrument,Footnote 94 whose text was slated to be finalised by May 2024.Footnote 95 As noted above, however, the language of the proposed treaty has yet to be agreed upon by states. That said, some have expressed optimism that the instrument will eventually be agreed upon and concluded.Footnote 96
Although all aspects of the instrument are subject to change until that time,Footnote 97 certain provisions have already witnessed consensus.Footnote 98 For example, the preamble as currently drafted acknowledges the danger of antimicrobial resistance.Footnote 99 The instrument defines the One Health concept as an approach that seeks to ‘sustainably balance and optimise the health of people, animals and ecosystems’ and affirms ‘that the health of humans, domestic and wild animals, plants and the wider environment (including ecosystems) is closely linked and interdependent’.Footnote 100 To be sure, the definition of the One Health model as currently constructed appears to devote appropriate attention to the health of animals, whose interests are intertwined with that of humankind. Yet the actual measures to safeguard those interests prove ambiguous at best.
Again, with many of the provisions of the current draft not yet agreed upon, with regard to One Health-related obligations, Article 5 would require parties to develop a coherent and integrated strategy into national law.Footnote 101 In addition to calling for collaboration,Footnote 102 the treaty would obligate parties to identify and address pandemic drivers, including the emergence and re-emergence of diseases at the human–animal–environmental interface, and to intervene to prevent, prepare for, and respond to zoonotic outbreaks.Footnote 103 Article 4 would require parties to, subject to their individual capacities, take measures to prevent the spread of infectious diseases between humans and animals and to combat antimicrobial resistance.Footnote 104 The actions a party would be required to take to meet these obligations is not identified in the present draft. Although the text does feature language that would commit parties to lay out the ‘operational’ among other dimensions of what the One Health approach would require at a later date, the provision itself is contested and its integration into the final treaty, if one is concluded, is uncertain.Footnote 105
Assuming the WHO Pandemic Agreement is concluded and meets the requisite threshold to enter into force,Footnote 106 the qualifying language in many of the substantive provisions regarding the capabilities of parties to fulfil their obligations, in addition to the lack of specific obligations, may yield few if any gains for the interests of animals. That said, assuming that the Agreement is concluded and enters into force, its provisions may be complemented by the Convention on Animal Protection for Public Health, Animal Well-Being, and the Environment, which was designed to fill this void.
13.4 The Convention on Animal Protection
13.4.1 Overview and History
The origins of the CAP trace back to the early stages of the COVID-19 outbreak, specifically to the efforts of international animal law scholars, attorneys, and advocates working within the International Animal Law Committee of the American Bar Association (ABA).Footnote 107 Notably, it was just before a long-planned Committee meeting to discuss the International Convention for the Protection of Animals, which was drafted in 1988 and represents the first proposed treaty to contemplate the interests of animals as individuals, that COVID-19 was reported as having struck the United States.Footnote 108 Given the likely animal origins of the novel coronavirus and several of the Committee members’ acute awareness of how the health and well-being of animals is inextricably tied to that of humans and the environment, the question that emerged was whether world leaders might, in light of the health crisis that was unfolding, finally prove receptive to the need for global standards regarding the protection of animals.
As a first step toward this goal, core members of the International Animal Law Committee authored a Resolution and Report for the ABA as a whole to consider taking a formal position on this issue.Footnote 109 To that end, the language of the Resolution, which was approved, read that the ABA ‘urges all nations to negotiate an international convention for the protection of animals that establishes standards for the proper care and treatment of all animals to protect public health, the environment, and animal wellbeing’ and that it likewise encouraged the US State Department to initiate and assume a leadership role with respect to its negotiation.Footnote 110 Given the ABA’s general anthropocentric focus, what this development attested to was the need to embrace animal health and well-being as a means to safeguard the interests of humankind. Coming off this development, the core working group that authored the ABA Resolution and Report founded the International Coalition for Animal Protection (ICFAP), a nonprofit organisation through which they developed two drafts of the CAP treaty.Footnote 111
13.4.2 The Draft Convention
Notably, both drafts of the CAP employ the One Health model to advance the interests of animals yet differ widely with regard to approaches taken. Whereas the protections advanced by the first specifically arise out of the disease prevention context,Footnote 112 those in the second are informed by the intrinsic interests of animals, with the prevention of disease, among other benefits, necessarily flowing from those safeguards. Put differently, while the second draft of the CAP is still informed by anthropocentric interests, these interests feature less prominently than the inherent interests of animals themselves. This shift is reflected by the change made to the title in the second draft of the Convention, with the term ‘Welfare’, which primarily focuses on reducing pain and suffering, replaced by the arguably more holistic term ‘Well-Being’,Footnote 113 which contemplates the need to consider, if not provide for, animals’ positive affective states.Footnote 114 Although other noteworthy distinctions between the drafts exist, going forward, this chapter will focus on the second and, at present, final draft of the Convention.
13.4.3 Preamble and Fundamental Principles
Informed by the One Health concept, the CAP foregrounds the interconnectedness of anthro-, eco-, and zoo-centric concerns in its preamble while also emphasising the intrinsic value of animals and the need to safeguard their interests for their own sake. To this end, the first preambular statement observes how protecting animals and the ecosystems that support them promotes public health, biodiversity, and economic development, among other benefits.Footnote 115 From here, the second attests to the need to secure the interests of animals outside of the species context,Footnote 116 which many international agreements concerning animals fail to go beyond.Footnote 117 By stressing that animals, as sentient beings, have intrinsic value, the CAP indicates that their individual well-being merits consideration.Footnote 118 In addition, the preamble attests to how failing to do so poses a critical risk factor with regard to the spread of infectious diseases and how an integrated approach to global health, as contemplated by the One Health approach, can mitigate such risks.Footnote 119 In a similar vein, the CAP addresses the ecosystem functions that animals provide by mitigating the effects of anthropogenic climate change, which they also suffer from.Footnote 120 It is in light of the interconnectedness of human, animal, and environmental interests, as well as the fact that animals cross geopolitical borders, that the preamble stresses the need for cooperation among states if their interests are to be secured.Footnote 121 Appreciating that doing so represents a complex, multifaceted endeavour, the CAP distinguishes itself in desiring to realise benefits to public health, the environment, and the well-being of animals through the development of binding obligations for contracting parties to it.Footnote 122
In terms of the rationales that guide the provisions of the Convention, Article 1 of the CAP establishes five fundamental principles.Footnote 123 The first attests to humankind’s evolutionary heritage and coexistence with animals within interdependent ecosystems; in doing so, it articulates how the health and well-being of animals at the group level, both species-specific and as to local populations, and individual level buttress the health of shared ecosystems, thereby supporting public health, environmental protection, and conservation efforts.Footnote 124 Beyond extrinsic value, the second affirms that animals, as sentient beings, have intrinsic value, one that creates a moral imperative to ‘act responsibly’ toward them.Footnote 125 Far from prescribing animal abolitionism, what the principle advances is the view that animals should not be subjected to cruelty and ‘unnecessary suffering’,Footnote 126 with this language mirroring many states’ existing animal cruelty frameworks.Footnote 127 While this provision arguably creates a general, if ambiguous, floor with respect to limitations as to how animals should be treated, the CAP’s third fundamental principle states that positive duties exist in the context of animals under human control.Footnote 128 In this regard, the CAP requires their well-being to be provided through an ‘adequate, species-specific environment and care appropriate for their particular needs’.Footnote 129 In doing so, the CAP contemplates the interests of animals at both the species and individual level. In observing how psychological, physical, and environmental stressors compromise their well-being and increase their likelihood of becoming vectors of disease, the last two principles observe the need to employ a precautionary approach in regulating human interaction with animals.Footnote 130
13.4.4 Substantive Provisions
While the CAP’s preamble and fundamental principles do not in and of themselves establish specific obligations, they nevertheless inform the anthro-, eco-, and zoo-centric arguments for why the substantive provisions of the Convention prove critically important. Recognising that any specific obligations that arise must be attentive to differences in states’ use of and interaction with animals, the CAP first creates a baseline of protections applicable to animals generally, then advances provisions specific to free-roaming wild animals and to those animals, whether domestic or wild, under human control.Footnote 131 While numerous other categorisations could certainly be conceived, the CAP appreciates that different obligations may, and arguably should, flow to animals based upon humans’ use of and interaction with them. With regard to these duties, contracting parties are required to designate a competent authority to carry out all matters relating to their obligations under the CAP.Footnote 132
With respect to protections applicable to all animals, the Convention requires contracting parties to, as far as is possible, take legislative, administrative, and other policy measures to construct a minimum baseline.Footnote 133 Captured in Article 3, these measures include ensuring animals are not subjected to cruel acts or conditions and that, if killed, the methods employed inflict the least amount of pain and suffering possible.Footnote 134 In addition to the killing of animals for food, clothing, and other commercial purposes, this provision would also apply to non-commercial activities, such as hunting and the eradication of non-native species. Furthermore, the CAP also requires contracting parties to consider the well-being of animals across all sectors, programs, and policies in order to provide for a whole-of-government approach to promoting their interests.Footnote 135 As part of this mandate, contracting parties would be required to identify the actual or likely impact of their activities upon their well-being and develop measures to mitigate such harms.Footnote 136 In addition, contracting parties must ensure that these measures are not weakened so as to undermine existing protections.Footnote 137
Subject to their capability, contracting parties are required go further in providing for the well-being of animals under human control. As articulated in Article 4, such measures take into account differences in requirements among species and require contracting parties to ensure that animals are provided: sufficient and suitable food and water; shelter from the environment; opportunities for exercise, movement, socialisation; an environment that allows them to engage in natural behaviours; veterinary care that contemplates not just their physical health but also their well-being and the sanitary conditions of their surroundings.Footnote 138 In addition to echoing the prohibition against cruelty and unnecessary suffering, Article 4 prohibits the overworking and abandonment of animals,Footnote 139 with the latter being attentive to the reality that animals, whether domestic or captive wildlife, may not be able to survive on their own after having been dependent upon human care. For animals in transport, contracting parties must establish maximum times for their transport and confinement, as well as develop species-specific requirements for rest, food, water, and ventilation and protections against adverse environmental conditions.Footnote 140
With regard to wild animals not under human control, contracting parties are obligated to take measures, insofar as possible, to secure their interests as captured in Article 5. First, contracting parties must establish and maintain a system of protected areas for the express purpose of conserving and protecting them.Footnote 141 They, too, must promote non-lethal management practices, ones that result in the least suffering of both targeted and non-targeted animals.Footnote 142 Furthermore, contracting parties must develop measures to protect wild animals in their assessments of infrastructure and development projects. In addition to monitoring the impact of such projects on wild animals and their habitats, contracting parties are also required to monitor the impact of climate change and other anthropogenic stressors.Footnote 143
As discussed in Section 13.2, the failure to provide for the interests of animals and protect their habitat has driven the emergence and reemergence of new and known pathogens. Taken together, then, Articles 3, 4, and 5 of the CAP inherently serve to mitigate the risk of such outbreaks, both zoonotic and non-zoonotic, by obligating states to secure the physical and psychological health and well-being of animals both within and beyond the direct human–animal interface.
That said, Article 6 of the CAP features provisions focused specifically on combating the emergence and spread of pathogens, as well as antimicrobial resistance.Footnote 144 To this end, the CAP requires contracting parties to develop veterinary services tailored to locally relevant pathogenic risks, to create facilities to monitor and prevent their emergence, and to detect and manage high-risk practices with respect to the wild animal, human, and animal-under-human-control interface.Footnote 145 With respect to what has been termed the ‘silent pandemic’, or the emergence of antibiotic-resistant bacteria through their overuse in animal-based agriculture,Footnote 146 the CAP goes beyond what is prescribed by the present draft of the WHO Pandemic Agreement by prohibiting the prophylactic use of antibiotics for purposes of promoting growth or increasing yield outside of exceptional cases.Footnote 147 Notably, this prohibition would echo what the EU requires for its domestic producers and for imported products.Footnote 148 In addition, the CAP proves attentive to the need to monitor animal-use facilities and transport chains and requires that animals be properly contained and separated by species, with due regard needing to be paid to health and sanitation conditions.Footnote 149 The CAP also obligates contracting parties to promote alternative practices to reduce the risk of the emergence and spread of pathogens.Footnote 150 With Article 6 requiring that contracting parties exchange information regarding the link between animal well-being and the emergence and spread of disease, it inherently complements the substantive provisions from Articles 3, 4, and 5. Finally, in recognising that the emergence of pathogens cannot be eliminated outright, Article 6 obligates contracting parties to prioritise the use of non-lethal management methods so as to consider the well-being of animals, whose suffering should be minimised.Footnote 151
Taken together, the provisions advanced through Articles 3–6 of the CAP establish a global floor for animal protection, yet the CAP also provides for the development of protocols to further elevate the interests of animals beyond it.Footnote 152 As such, the CAP holds the promise of housing critical gains for animals over time. With states being able to enter into a protocol only if a contracting party to the Convention,Footnote 153 states are further incentivised to ratify the CAP in order to help shape future animal protections, which may seek to strengthen or expand upon those already contemplated by the CAP or else result in wholly new requirements, such as prohibitions against the use of animals for cosmetic testing purposes or bans on whaling, both of which have already gained traction globally.Footnote 154
13.4.5 Promoting Protections through Trade
To be sure, one of the most criticised aspects of treaties concerns their enforcement. While this issue is arguably exacerbated by the CAP’s limiting language that obligates contracting parties to carry out measures ‘as far as possible’, the Convention contemplates the use of trade and trade agreements as a means to encourage both contracting parties and non-contracting party states to meet the thresholds envisioned by the CAP. Articulated in Article 8, contracting parties engaged in the trade of live animals or their products are expected to encourage non-contracting party states to adopt animal well-being standards that either meet or exceed those prescribed by the CAP.Footnote 155 Furthermore, when developing trade agreements concerning live animals or their products, contracting parties are required to include provisions to see that the well-being of the animals involved meets or exceeds those contemplated by the Convention.Footnote 156 Together, these provisions help to ensure that contracting parties do not suffer economic disadvantages by virtue of having advanced animal protections. In a similar vein, the CAP also prevents contracting parties from weakening their domestic animal protections for the purpose of inducing trade.Footnote 157
Given the immensity of the trade in animals and their products globally, these provisions serve to encourage non-contracting party states to ratify the CAP, as contracting parties would be incentivised, whether for economic, health, or moral reasons, to restrict engaging in trade with them. Critically, the CAP’s framework would not provide for new forms of economic protectionism than those that already exist today. Rather, it could help formalise, if not ground, the existing use of trade barriers to prohibit the import of lower welfare and higher disease risk animal products.
Indeed, while the world’s foremost regulatory trade body, the World Trade Organization (WTO),Footnote 158 is fundamentally concerned with removing obstacles to trade among states, several of its regulatory frameworks permit states to construct trade barriers for ‘justifiable’ reasons,Footnote 159 reasons that include safeguarding animals and their interests. For example, one such exception to the rule that prohibits discriminating against foreign products under the WTO’s General Agreement on Tariffs and Trade (GATT) permits states to create barriers if deemed ‘necessary to protect human, animal, or plant life or health’.Footnote 160 Another WTO framework that permits the construction of trade barriers is the Sanitary and Phytosanitary (SPS) Agreement.Footnote 161 Negotiated between the WTO and the World Organisation for Animal Health (WOAH), the SPS Agreement permits states to develop trade barriers based not just upon WOAH’s animal health standards, which conceivably operate as a global floor, but also their own national regulations, thereby providing flexibility to secure the health of their citizens, as well as that of animals by extension.Footnote 162 Citing the SPS Agreement, the EU has entered into trade agreements that prohibit the import of meat products if the well-being of animals was not taken into account during stunning and slaughter.Footnote 163 In a similar vein, the EU has also prohibited prophylactics for the purpose of stimulating the growth and yield of farmed animals, an issue that, while focused on preventing antimicrobial resistance, implicates the well-being of farmed animals.Footnote 164 By banning the import of animal products developed using the prophylactic use of antibiotics, the EU measure has considerable extraterritorial reach, one that the CAP’s provisions on trade would not just allow for but also encourage.
On top of this, the WTO framework also permits states to prohibit or otherwise construct welfare labelling around the import of animals and animal products based upon the moral views of its citizens. In one such case, the EU moved to ban the import of seal products for commercial purposes.Footnote 165 Referred to as the EU Seal Regime, the ban was founded upon the EU public’s moral distaste for the killing of seals.Footnote 166 Although the WTO’s Appellate Body found that the EU Seal Regime violated the GATT because its exception for seal products from Inuit and Indigenous community hunts provided favourable market access to Greenland’s Indigenous communities compared to those of Canada, among other reasons, it nevertheless affirmed that public moral sentiment around the ethical treatment of animals could justifiably be used to restrict market access.Footnote 167 In light of this pronouncement, the WTO has effectively provided that states may leverage the strength of their domestic animal protection laws to encourage other states to follow suit if they wish to gain access to markets with higher animal welfare standards,Footnote 168 an argument that is already gaining traction in some states, like New Zealand.Footnote 169 By encouraging contracting parties to adopt such barriers, the CAP promotes the protection of animals for their own sake, to prevent the emergence and spread of pathogens, and to gain certain economic and market advantages.Footnote 170
13.4.6 Entry into Force, Compliance Measures, and Enforcement
Requiring at least ten states to ratify the Convention before going into force,Footnote 171 the CAP is open indefinitely to accession.Footnote 172 Upon joining, contracting parties must furnish the Secretariat with all domestic laws, policies, and regulations related to their obligations,Footnote 173 with biennial reports regarding how they continue to fulfil them submitted every two years.Footnote 174 Similar to other conventions, the CAP features a Conference of the Parties (COP), which would meet every two years after the initial COP.Footnote 175 In addition to contracting parties adopting financial and administrative rules and procedures and contemplating the creation of new committees to carry out functions,Footnote 176 each COP would be charged with reviewing the implementation of the Convention by contracting parties and scientific data and recommendations concerning the well-being of animals and the emergence and spread of pathogens and potentially act upon recommendations and adopt resolutions, amendments, and protocols.Footnote 177 Notably, it is also at each COP that a Standing Committee comprised of representatives from contracting parties would be elected to investigate issues, consider and offer recommendations, and suggest new protocols and amendments, among other powers.Footnote 178 Notably, a Standing Committee would have the power to interrogate the legislation and enforcement efforts of contracting parties.Footnote 179 Although only contracting parties are afforded a vote at a COP, non-contracting party states, international organisations, and non-governmental organisations that work in the realm of animal protection, environmental protection and conservation, or disease would have an opportunity to attend and participate.Footnote 180
Of course, as with any international agreement, a critical question concerns how to ensure that parties are fulfilling their obligations and how disputes between and among them will be handled. As to the former, the CAP empowers contracting parties to develop procedures and mechanisms to determine when a contracting party is in non-compliance and what measures may be taken, including: the provision of advice and assistance; an official notice of non-compliance; a suspension of rights under the Convention itself; and, in cases of repeated non-compliance, other measures as deemed appropriate by the Standing Committee.Footnote 181
As it concerns disputes among contracting parties related to the interpretation, application, performance, or implementation of their obligations, the Convention provides three options, including: negotiations between the contracting parties involved; submission by mutual consent to the Permanent Court of Arbitration at The Hague for a binding decision; and conciliation through the creation of a commission, whose resolution is not binding yet is expected to be considered in good faith.Footnote 182 Of course, while contracting parties may withdraw from the CAP,Footnote 183 the ability of contracting parties to employ trade measures to encourage non-contracting party states to meet or exceed the provisions of the CAP offers a compelling opportunity to ensure that the interests of animals are centred on the global stage – whether for their health and well-being or for humankind’s, as contemplated by the One Health concept.
13.5 Denouement
To turn back to 11 March 2020, to Ghebreyesus’s briefing of the press, and the one word he expressed regret at having to say, what the pandemic he announced into existence made clear is the power that words hold. Given the power it held to cast narratives to its mould, it was that one, he lamented, that enjoyed more attention than it deserved, and in transitioning into the conclusion of his address, what Ghebreyesus expressed wanting to leave the world with were others, ‘actionable’ words, words that he felt mattered more.Footnote 184 The first among them was ‘prevention’.Footnote 185 At that time, what the word meant was that all people, as individuals and together, could take actionable steps to mitigate the spread of the novel virus. They could rewrite the narrative that they had been cast into.
It was just one year later, in March of 2021, that the word took on new meaning, one gleaned by context and noscitur a sociis, or the doctrine of construction entailing that the meaning of a word may be gleaned by its relation to those around it. As expressed by the WHO Director-General and two dozen world leaders calling for more than just ‘preparedness’ and ‘response’ but also ‘prevention’,Footnote 186 part and parcel of the robust international health architecture was the ability to prevent outbreaks before they began. With such an accord to be informed by the One Health model, the WHO Pandemic Agreement’s consideration of the human–animal interface and the emergence and spread of zoonotic diseases appropriately points out where the world should look and what it should be looking for yet fails to advance the measures necessary to regulate or eliminate the uses of or interactions with animals that the world has seen to give rise to the kinds of outbreaks that have become pandemics. Rather, its measures approach pandemics as a given.
But even if the question of pandemics is not one of if but when, the frequency with which the world must be ‘conscripted’ into the next pandemic story should not go unquestioned. Given that a strong argument can be made that, given the purview of the WHO as contemplated by its constitution, the WHO Pandemic Agreement may not be the appropriate instrument to feature the animal protections necessary to reduce the occurrence of pandemics, another agreement that does must be negotiated to fill this space. As discussed, the Convention on Animal Protection for Public Health, Animal Well-Being, and the Environment advances several protections designed to safeguard the health of animals and, by extension, that of humankind as well. In its affirmation of animals’ sentience and intrinsic value, the CAP seeks to not just advance their protections on the global state but also their status in eyes of the law.
Indeed, the last in the short list of important words that Ghebreyesus offered the world in declaring the pandemic was ‘people’.Footnote 187 Although there may be little doubt the Director-General conceived the term as coterminous with ‘humans’, it bears noting that significant gains have been realised – many of them in the midst of the COVID-19 pandemic itself – in extending substantive as well as procedural rights to animals around the world, thereby helping shift their status in the eyes of the law from that of mere property, or legal objects, into legal subjects, or ‘persons’.Footnote 188 Against the backdrop of this shift in the legal status of animals worldwide, insofar as pandemics may be considered to be the story of ‘all people’, the CAP, in complementing the WHO Pandemic Agreement’s focus on animal health, provides a unique opportunity to reimagine the ‘character’ of animals in our collective story and, conversely, animals as ‘characters’ in it, with the resulting fable revealing deeper moral truths over time and with further re-visions.
