The Novel Case of Animal Refugees in the European Union
Legally and historically speaking, a case for animal refugee has never been made in the past, which could be due to several reasons such as lack of ethics and scientific evidence or capitalism, but within the current day and age, where there is irrefutable scientific evidence of animals being sentient and the world shifting into a new age of human rights and ethics, isn’t it time for us revisit the pages of history and offer our furry friends the basic protection from being persecuted? This article is focused on discussing the novel case in point of Ukraine refugees fleeing from their homes along with their companion animals to safer member states within the European Union. As per the EU Secondary law, the movement of companion animals, such movement of animals is typically not allowed. However, in this extraordinary case, the EU allowed such movement. This precedent, therefore, raises the potential legal question of animals having refugee rights (for now, the right of free movement of pets) in the EU. Using tools of EU law interpretation, this article will try to make a preliminary case that animals can have refugee rights.
The Ukraine Crisis
With the tragic armed conflict initiated by Russia over Ukraine, the core of the EU as a union has been shattered. There have been reports of casualties in the thousands and while the whole world mourns, a very interesting legal development has occurred in relation to animal welfare during times of emergency. As per the current rules enshrined in the UN Refugee Convention, to which all EU Member states are parties, only humans have protection from the fear of being persecuted, whereas companion animals have no protection and must be left behind to die. This view is further reinforced by Regulation (EU) No 576/2013 on non-commercial pet animals traveling between EU countries and Non-EU countries. As per this regulation, to travel between EU countries, pets must be marked by means of a transponder or tattoo), have received an antirabies vaccination, comply with any preventive health measures for diseases other than rabies, be accompanied by a passport completed and issued by an authorized vet. These conditions are based on the EU prerogative of protecting human health, however, such conditions cannot be fulfilled during times of emergencies, especially during Russia’s invasion of Ukraine.
Despite there being no legal protection for animals during times of emergency, humans have no obligations towards animals, however, the strong will of the Ukrainian surpasses that of ordinary humans, who despite being on the verge of death, have simply refused to flee Ukraine without their pet animals. The Ukrainians know that if their animals are left behind, then they are basically sentencing them to death. This act, although not legal, is monumental for animal welfare in the EU and sets an example for the world to follow.
The Response from EU and Member States to the Extraordinary Ukrainian Stand for Animals
On the legal end, as per the EU’s 2013 Regulation on the non-commercial movement of animals,
animals are typically not allowed to travel with the refugees because of border restrictions on moving animals between countries for health reasons, meaning vaccination results for rabies, which take several weeks to prepare and cannot be prepared during the current Ukraine Crisis, therefore, animals cannot cross borders. While this is the legal case, the EU had strongly advised Member states, in the current state of emergency, because animal welfare is an objective of general concern for the EU and due to the presence of TFEU Article 13, on request by the EU Veterinarian federation, to cut red tape for Ukrainian citizens fleeing from war to safety in the EU with their pet animals. As a result, Romania, Poland, Hungary, Slovakia, Lithuania, Slovenia, and Latvia have relaxed their entrance requirements and have allowed the pets of Ukrainian refugees to enter without documentation, microchips, or vaccination certificates. Outside of the EU, India has also relaxed its animal entrance laws as a one-time measure by allowing stranded Indians to evacuate with their pets.
Legal Derogation of the Non-Commercial Movement of Pets 576/2013 Regulation
Additionally, under Article 32 of the 576/2013 Regulation, legal derogations are allowed. These exceptions include natural disasters, political unrest, or another type of force majeure incident. Normally, to allow a derogation, the owner must apply for permission in advance to the competent authority, and after arrival to the place of destination, the animals must remain in isolation until they meet health requirements, in order to protect human and animal health. Due to the emergency situation in Ukraine, the entry of these animals is provisionally authorized on the basis of a completed application (authorized under the 576/2013 Regulation) and under the conditions set out in the application, to ensure that the entry of these animals into the EU does not pose a risk of rabies introduction/transmission. Therefore, it is highly probable that this protection can be afforded to pet animals in all types of armed conflicts. While this is noble, pets have other needs such as the right to food and more ground needs to be made. Additionally, what is more critical to understand is that this legal derogation was, first, a result of compassionate interpretation, and no new laws were made for advancing animal protection, and secondly, this derogation materialized because of the extraordinary stand of Ukrainians, who were in the middle of the war, so it’s highly unlikely that a case for advancing animal welfare would have been made in a less severe situation such as in times of peace.
Functional Nationality Principle & Use of Extraterritoriality in Advancing the Animal Refugee Case
As discussed above in Zuchtvieh and the OABA ECJ judgments, there is a notion of extraterritorial effect in play, which is being used in advancing animal welfare. In Zuchtvieh, transports regulation applied to animals whose journey began in the EU and was completed in non-EU Countries. Charlotte Blatter, an EU expert in International Animal law states that under the law of extraterritorial prescription, under international law, this is only legally allowed where there exists an intra-territorial legal anchor connecting the regulated object with the concerned territory, based on principles of sovereignty. In Zuchtvieh’s case, that object is the transporting company and it being a national company of an EU state and secondly, the animal, which is not a legal person, but the fact that the journey began in the EU, gave the EU a legal anchor in regulating the transport of the animal outside that of EU.
In the OABA case, meat that does not follow the slaughter regulation, will be allowed to be sold in the EU market. Legally, this also means no meat products from outside the EU may be allowed to be placed in the EU’s internal market without legal fulfillment of the slaughter directive, hence creating another extraterritorial effect. In this case, the object being regulated is within the EU’s Internal Market and under the territorial principle is subject to EU law.
Similarly, once an animal, who may be originally in a non-EU state such as Ukraine, when enters an EU territory, would be subject to EU Law and hence fall under the EU regulation on the movement of non-commercial animals. As we have already established situations such as that of armed conflicts in Ukraine, where the non-commercial movement regulation can be legally derogated, it can be argued that under EU Laws, pets in times of war, can be allowed to move into the EU, based on that nationality of its owner.
However, can an animal based on its own be afforded the above protections, under its own nationality? For that to happen, an animal can be given a functional nationality, like that of corporations and flag-bearing ships, i.e. non-human persons having a legal functional nationality. A case can be made that animals can be granted a status of conditional legal personhood, just like how legal personality has been offered to actual non-persons such as corporations, children, and severely immunocompromised persons. Another historical argument that can be made is that originally women and slaves did not possess a legal personality during the 1800s and despite being human persons were omitted from society. It was only through a long struggle of civil rights and feminist movements that these individuals finally received legal personhood, so why the same proposition cannot be applied in the case of animals as well? I believe we can apply the same facts to animals and offer them legal protection under international law but the enforcement of the same is another story.
The novel public precedent set by the Ukrainians in socially compelling the EU to relax its laws in protecting animals during an armed conflict is a major victory for all animals. However, the roots of this victory go way back to at least 2001, when the EU, in Jippes for the first time highlighted requirements of animal welfare, to the Lisbon Treaty, where TFEU Article 13 for the first time declared animal sentience, 2015, in Zuchtvieh, where Article 13 was operationalized and animal protections were extended to even outside of the EU, provide the transport began in the EU, to 2020, in the religious slaughter case, where animal welfare was officially declared an objective of public interest.
With the interplay of all these factors and the brilliant legal scholarship of EU experts such as Charlotte Blattner on the use of the lawful extraterritorial application in protecting animals within and beyond borders, the EU despite its existing limitations, has become a world leader in animal welfare. The EU Legal response on the lawful novel derogation of the 576/2013 Regulation in protecting animals by allowing them to seek refuge from an active armed conflict zone is a landmark precedent for the world to follow and the newly formulated EU Animal Welfare Platform (2017), to which OIE, the FAO, and the World Bank are parties, this domestic EU precedent can be absorbed into public international law proper as well.
UNTS 2545, 1951 Convention relating to the Status of Refugees and the 1967 Protocol. Text available at: https://treaties.un.org/doc/Publication/UNTS/Volume%20189/volume-189-I-2545-English.pdf. Refugee Convention 1951 only provides protection to humans and doesn’t allow fleeing refugees to flee with their animals, which is a guaranteed death for pets. In the Refugee convention’s defense, the evolution of International law has been solely based on anthropocentrism and animal welfare is slowly but surely changing the narrative.
Regulation (EU) No 576/2013 of the European Parliament and of the Council of 12 June 2013 on the noncommercial movement of pet animals and repealing Regulation (EC) No 998/2003. Text available at: https://www.eumonitor.eu/9353000/1/j9vvik7m1c3gyxp/vjb2zbm3bpzl
Anne Peters, Animals in International Law, Leiden, The Netherlands: Brill | Nijhoff
World Trade Organization, https://www.wto.org/
Charlotte E. Blattner, Protecting Animals Within and Across Borders: Extraterritorial Jurisdiction and the Challenges of Globalization.:Oxford University Press, https://oxford.universitypressscholarship.com/view/10.1093/oso/9780190948313.001.0001/oso9780190948313
EU Relaxes Entry Paperwork For Pets Travelling With Ukrainian Refugees, https://www.euractiv.com/section/health-consumers/news/eu-relaxes-entry-paperwork-for-pets-travellingwith-ukrainian-refugees/
European Countries Waive Some Regulations For Ukrainian Refugees Travelling With Pets, https://mothership.sg/2022/03/ukraine-pets-enter-europe/
As People Refuse to Leave Furry Companions Behind, India Relaxes Norms For Bringing Back Pets from Ukraine, https://www.wionews.com/india-news/as-people-refuse-to-leave-furry-companions-behind-india-relaxesnorms-for-bringing-back-pets-from-ukraine-458120
Government of Slovenia response to Derogation of 576/2013 Directive, https://www.gov.si/en/registries/services/derogations-for-non-commercial-movements-of-pets-exceptionalsituation-in-ukraine/
576/2013 regulation Art 32: Derogation for the non-commercial movement of pet animals into Member States
Article 32 Derogation from the conditions of Articles 6, 9, 10, 14
Regulation (EC) No 615/98 - Directive 91/628/EEC - Export refunds - Protection of bovine animals during transport - Payment of export refunds for bovine animals subject to compliance with Directive 91/628/EEC - Principle of proportionality - Forfeiture of export refunds
ECJ (Grand Chamber), Case C-497/17, Œuvre d’assistance aux bêtes d’abattoirs (OABA) v. Ministre de l’Agriculture et de l’Alimentation et al, judgment of 26 February 2019 : Halal-slaughtered meat may not receive the EU biolabel
ECJ, case I-5689, Jippes et al. v. Minister van Landbouw, Naturbeheer en Visserij, Judgment of 12 July 2001, para 85
S.S. Lotus (Fr. v. Turk.), Judgment, 1927 P.C.I.J. (ser. A) No. 10 (September 7)
Sue Donaldson & Will Kymlicka, Zoopolis: A Political Theory of Animal Rights, Oxford University Press, 2011
Sue Donaldson & Will Kymlicka, Unruly Beasts: Animal Citizens and the Threat of Tyranny, 47 Can. J. Pol. Sci (2014)
Will Kymlicka & Sue Donaldson, Animals and the Frontiers of Citizenship, 34 Oxford J. Legal Stud. (2014)
This article is authored by Altamush Saeed, an LLM holder in the areas of Global Animal, International, Constitutional, and Human Rights Law, and a student of the online course of Animal Law Fundamentals taught and supervised by Lu Shegay. The course was generously sponsored by the Food System Innovations.