Is It Lawful to Enslave the Unconsenting?

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The issue of animal rights protection is not only legal but also moral, ethical, and philosophical. Considering this issue in only one of its aspects will not give an opportunity to look at the whole picture. Therefore, this question is worth analyzing in the correlation of these three systems.

Let’s start with the legal aspects. To understand whether it is lawful to enslave the unconsenting, it is worth turning to the concepts of slavery and consent in the law system since we are talking about legality. Slavery is mentioned in many international treaties such as the Declaration of Human Rights [1], Slavery Convention [2], Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery [3], and International Covenant on Civil and Political Rights [4]. All these international treaties speak of the illegality of slavery but reduce it only to the status or condition of a person.

Slavery is currently prohibited in all countries. In 1981, Mauritania became the last country in the world to abolish slavery de-jure [5]. Ownership of people has indeed been abolished in all countries of the world over the past two centuries. However, in many countries, it has never been criminalized. Almost half of the world’s countries do not have criminal legislation that would punish slavery or the slave trade. Also, in 94 countries, you will not be prosecuted and held criminally liable in court for enslaving another person [6]. And again, it all comes down to humans only. The International Court of Justice has identified protection from slavery as one of two examples of “obligations erga omnesarising out of human rights law” [7]. That is, the concept of slavery does not apply to animals, at least at this stage of the development of international law.

The second concept, namely “consent”, is an agreement or permission to do something according to the Cambridge Dictionary [8]. In this case, we can argue that animals must give their consent for people to perform any action on them. But, given that animals cannot express their disagreement in a language we understand, people neglect this fact.

In international law, some — but not all — inactions, non-responses, omissions, or other “silences” are capable of producing legal effects [9]. This is called “acquiescence”, which has arisen in several ICJ proceedings, including in relation to consular rights, border disputes, diplomatic asylum, consent to jurisdiction, and maritime claims [10]. Based on this, we can assume that if the animals did not object to human actions, then they agreed to them. Therefore, according to the law purely regarding animal rights, the enslavement of the unconsenting is lawful.

Legislation, in particular the CITES Convention [11], currently regulates the illegal trade in animals. Every year, the international wildlife trade is estimated at billions of dollars and includes hundreds of millions of samples. Trade is diverse, ranging from live animals to a wide range of animal products derived from them, including food, exotic animal skin products, and medicines. The level of exploitation of some animal species is very high, and trade in them, along with other factors such as habitat loss, can greatly deplete their numbers, resulting in some species even close to extinction [9]. But the law also contains the concepts of legitimate trade, which brings us back to our starting point.

Therefore, it is impossible to limit ourselves to purely aspects of law in this matter since the law, in particular international law, proceeds from the will of the subjects of law and can change and develop depending on society’s requirements. Often, moral and ethical principles are the basis of the law.

Reasoning in the field of morality and ethics, it can be argued that animals acquire from birth the same natural rights as humans, which according to John Locke, include: the right to life, liberty, and property [10]. By arbitrarily taking freedom from animals, we violate their natural right to liberty and sometimes to life. And what is a violation of freedom if not enslavement?

The problem of modern society is that people and human life are always at the center. While a person knows how to talk, they can express their disagreement with this or that behavior in relation to their freedom and personality. Animals, in turn, cannot speak, so they cannot object. At least in a language that we understand. But they express their disagreement in other ways — physical resistance, whine, growling, and other peculiar signs. Is this considered a disagreement? I think yes. Therefore, from a moral point of view, the enslavement of the unconsenting — animals in our case — is unlawful. While animal rights have been initially framed as moral rights, they are increasingly articulated as potential legal rights. That is, animals’ moral rights are asserted in an ‘ought to be legal rights’– sense (or ‘manifesto sense’) [12].

Animal legal rights are derived from existing legislation. Several innovative courts have recently taken the path of judicial enforcement of animal rights, either through a rights-based interpretation of animal welfare law or through a dynamic interpretation of constitutional (human) rights. In particular, the Supreme Court of India has extracted several animal rights from the Animal Cruelty Prevention Act. Reading them in the light of the Constitution elevated these statutory rights to the level of fundamental rights [13].

Finally, some comments on the relationship between animal rights and rights-derived obligations are pertinent. Some researchers believe that animals cannot have legal rights, based on the popular idea that the ability to have rights is inextricably linked to the ability to bear responsibilities [14]. Since animals are incapable of carrying out legal duties in any meaningful sense, it follows that animals cannot have legal rights over other animals, given that these other animals would be unable to carry out the corresponding duties. But does this deprive animals of the right to have legal rights at all, for example, against legally capable people or the state?

So far, animal rights have been considered a philosophy. According to this philosophy, animals have their own unique rights, which can also be considered innate. Among them, it is worth highlighting the need to avoid suffering [15]. According to this concept, to treat an animal as a means to some human end is to violate that animal’s right. In this situation, we can refer to the concept of slavery from the Slavery Convention, applying it to animals.

According to Article 1 of the Slavery Convention, slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised [16]. If we apply this concept to animals, then it can be argued that slavery is the status or condition of an animal over whom any or all of the powers attaching to the right of ownership are exercised. Thus, any action on an animal that is committed without its consent and is carried out in the form of animal ownership can be considered slavery without consent.

This concept can acquire a legal character if it is transferred into a legal field by adopting relevant international treaties or by recognizing it as erga omnes. This should be done precisely at the international level since it concerns the entire international community. In turn, the countries in which certain species of animals live are responsible for protecting their right to freedom. This can be done according to the principle of protection of the world’s cultural and natural heritage in accordance with the UNESCO Convention [17]. The same principles could be applied to animals.

Is it lawful to enslave the unconsenting? Yes, nowadays, it is lawful. However, it is in our hands to make it illegal.

REFERENCES:

1. Universal Declaration of Human Rights, 1948, https://www.un.org/en/universal-declaration-human-rights/
2. Slavery Convention, 1926, https://www.ohchr.org/en/professionalinterest/pages/slaveryconvention.aspx
3. Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956, https://www.ohchr.org/en/professionalinterest/pages/supplementaryconventionabolitionofslavery.aspx
4. International Covenant on Civil and Political Rights, 1966, https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
5. https://edition.cnn.com/interactive/2012/03/world/mauritania.slaverys.last.stronghold/index.html
6. https://www.independent.co.uk/news/long_reads/slavery-legal-crime-forced-labour-un-legislation-a9333891.html
7. Barcelona Traction, Light and Power Co, Ltd. (Belgium v. Spain), Judgment of 5 February 1971, I.C.J. Reports, 1970, p. 32.
8. Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/consent
9. See generally Irina Buga, Modification of Treaties by Subsequent Practice 63–71, 209 (2018).
10. https://www.crf-usa.org/foundations-of-our-constitution/natural-rights.html
11. Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973, https://cites.org/eng/disc/text.php
12. Joel Feinberg, Social Philosophy (Prentice-Hall 1973) 67.
13. Supreme Court of India 7 May 2014, civil appeal no 5387 of 2014 [27] [56] [62ff]; see further Kerala High Court 6 June 2000, AIR 2000 KER 340 (expressing the opinion that ‘legal rights shall not be the exclusive preserve of the humans’, [13]); Delhi High Court 15 May 2015, CRL MC no 2051/2015 [3] [5] (recognizing birds’ ‘fundamental rights to fly in the sky’).
14. eg Richard L Cupp, ‘Children, Chimps, and Rights: Arguments from “Marginal” Cases’ (2013) 45 Ariz St LJ 1; see also Christine M Korsgaard, Fellow Creatures: Our Obligations to the Other Animals (OUP 2018) 116ff.
15. https://plato.stanford.edu/entries/moral-animal/
16. https://www.ohchr.org/en/professionalinterest/pages/slaveryconvention.aspx
17. Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972, https://whc.unesco.org/en/conventiontext/