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Protecting Animals Within and Across Borders
Protecting Animals Within and Across Borders
EXTRATERRITORIAL JURISDICTION AND THE CHALLENGES OF GLOBALIZATION
Charlotte E. Blattner
Protecting Animals Within and Across Borders. Charlotte E. Blattner. © Oxford University Press 2019. Published 2019 by Oxford University Press.
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Protecting Animals Within and Across Borders: Extraterritorial Jurisdiction and the Challenges of Globalization by Charlotte Elisabeth Blattner is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
Library of Congress Cataloging-in-Publication Data
Names: Blattner, Charlotte E., author.
Title: Protecting animals within and across borders: extraterritorial jurisdiction and the challenges of globalization / Charlotte E. Blattner.
Description: New York: Oxford University Press, 2019. | based on author’s thesis (doctoral— Universität Basel, 2016) issued under title: The extraterritorial protection of animals: admissibility and possibilities of the application of national animal welfare standards to animals in foreign countries. | Includes bibliographical references and index.
Identifiers: LCCN 2018051660 | ISBN 9780190948313 ((hardback): alk. paper)
Subjects: LCSH: Animal welfare—Law and legislation. | Exterritoriality. | Universal jurisdiction. | International and municipal law. | Law and globalization.
Classification: LCC K3620 .B53 2019 | DDC 346.04/6954—dc23 LC record available at https://lccn.loc.gov/2018051660
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Cover illustration: Dana Ellyn
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To Bobby and Balou
Contents
Preface and Acknowledgments xiii
List of Cases xvii
List of Legal Material xxvii
Abbreviations xlix
Introduction: Protecting Animals in an Age of Globalization 1
1. Mapping the Territory of Animal Law 11
§1 Cornerstones of Jurisdiction 11
A. Jurisdiction as a Meta- Ordering Doctrine 12
B. Potentia, potestas, and Other Core Elements of Jurisdiction 14
C. Usefulness of Prescriptive Jurisdiction 16
§2 The Rise of Extraterritorial Jurisdiction 17
A. The Historical Rise 17
B. Emerging Spheres of Jurisdiction 18
C. Globalization and Deterritorialization of Sovereign Space 19
D. The Rise of Jurisdiction Based on Personal and Organizational Sovereignty 23
§3 The Extraterritoriality Framework 25
A. Jurisdictional Norms and the Extraterritoriality Framework 25
B. Extraterritorial Jurisdiction stricto sensu, or Direct Extraterritoriality 28
C. The Animal Relation 31
D. Extraterritorial Ancillary Repercussions, or Indirect Extraterritoriality 33
§4 Spatial Dimensions of Animal Law 34
A. Of Humans and Other Animals 34
B. Unconquered Jurisdictional Territory 38
§5 Assistants along the Way: Four Case Groups 43
§6 Interim Conclusion 48
2. Shifting Spatial Dimensions of Animal Law 51
§1 Animal Law at an Impasse 52
§2 Is Extraterritorial Jurisdiction the Panacea? 55
§3 The Rationale of Economic Entanglement 58
A. The Rationale of Economic Entanglement in Economic Law 58
B. The Rationale of Economic Entanglement in Animal Law 61
I. Regulatory Competition in Animal Law 61
II. Heading for Lower Common Denominator Movement 65
III. Catalysts for Extraterritorial Jurisdiction 67
§4 The Universality Rationale 69
A. The Universality Rationale in Criminal Law 69
B. The Universality Rationale in Animal Law 71
I. Recognition of Animal Sentience 71
II. Condemnation of Animal Cruelty 74
III. Principles of Humane Treatment and Avoidance of Animal Suffering 75
IV. General Principle of Animal Welfare 76
§5 Interim Conclusion 80
3. The Unanswered: Indirect Protection through the GATT 83
§1 Does the Trade Law Jungle Leave Room for Animals? 85
A. Animal Law vs. Trade Liberalization 85
B. Trade Law as Indirect Extraterritoriality 88
C. Labels, Tariffs, Taxes, and Quantitative Restrictions 91
§2 General Agreement on Tariffs and Trade (GATT) 94
A. Most-Favored-Nation Obligation 94
B. National Treatment Obligation 94
I. Note Ad Article III GATT 94
II. Article III GATT 96
III. Process and Production Methods (PPMs) 99
C. Reduction of Quantitative Restrictions 107
D. Schedules of Concessions 107
E. GATT Justifications 109
I. Article XX(g) GATT 109
II. Article XX(b) GATT 111
III. Article XX(a) GATT 112
F. Extraterritorial Animal Protection in the GATT 115
I. Terminology and Means of Interpretation 116
II. General Treaty Analysis of Articles XX(b) and (g) GATT 119
III. Jurisdictional Analysis of Articles XX(b) and (g) GATT 122
IV. General Treaty Analysis of Article XX(a) GATT 124
V. Jurisdictional Analysis of Article XX(a) GATT 126
§3 Interim Conclusion 127
4. The Ignored: Indirect Protection through the TBT, the SPS, the ADA, the AoA, and the Special Treatment Clause 131
§1 Agreement on Technical Barriers to Trade (TBT) 132
A. Scope of the TBT 133
B. Article 2 TBT 135
C. Extraterritorial Animal Protection in the TBT 138
§2 Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) 139
A. Scope of the SPS 140
B. Articles 2–5 SPS 140
C. Animal Welfare vs. Animal Health: The Role of the World Organization for Animal Health (OIE) 142
D. Extraterritorial Animal Protection in the SPS 147
§3 Anti-Dumping Agreement (ADA) 147
A. ADA and Article VI GATT 147
B. Extraterritorial Animal Protection in the ADA and Article VI GATT 149
§4 Agreement on Agriculture (AoA) 149
A. Applicable AoA Provisions 149
B. Extraterritorial Animal Protection in the AoA 152
§5 Special Treatment Clause 152
§6 Interim Conclusion 155
Indirect Extraterritorial Protection of Animals in Trade Law: Evaluation and Outlook 156
5. The Unexplored: Direct Extraterritoriality 161
§1 Jurisdictional Principles in Animal Law 161
§2 Territoriality Principles 163
A. Protecting Animals Abroad through the Territoriality Principle 163
B. Protecting Animals Abroad through Subjective and Objective Territoriality Principles 166
C. Territoriality Principles in the Extraterritoriality Framework 171
§3 Active Personality Principle 172
A. Natural Persons 172
B. Legal Persons 174
C. Parent Corporations, Branches, and Subsidiaries 175
I. Dissecting the Multinational 176
II. The Multinational as a Single Legal Unit 186
III. Synthesis 188
D. Active Personality Principle in the Extraterritoriality Framework 190
§4 Protective Principle 192
A. Protecting Animals Abroad through the Protective Principle 192
B. Protective Principle in the Extraterritoriality Framework 196
§5 Interim Conclusion 196
6. Extended Jurisdiction through Foreign Policy, Soft Law, and Self-Regulation 199
§1 Extended Extraterritorial Jurisdiction 200
A. Investment Rules 200
B. Export Credits 204
C. Bilateral Investment Treaties (BITs) 206
D. Free Trade Agreements (FTAs) 208
E. Impact Assessments 211
F. Reporting 215
G. Corporate Social Responsibility (CSR) 220
H. Codes of Conduct 224
I. OECD Guidelines for Multinational Enterprises 227
J. Extended Extraterritorial Jurisdiction in the Extraterritoriality Framework 229
§2 Interim Conclusion 230
7. Lex Ferenda: Direct Extraterritoriality 233
§1 Passive Personality Principle 234
A. Functional Animal Nationality 234
I. The Need for a Stable Jurisdictional Link to Animals 235
II. Nationality of Animals as Goods 238
III. Nationality of Animals as Passport Holders 239
IV. Nationality of Animals as Legal Hybrids 242
V. Functional Nationality 246
VI. International Legal Limits 247
VII. Acquisition of Nationality 249
B. Protecting Animals Abroad through the Passive Personality Principle 251
C. Passive Personality Principle in the Extraterritoriality Framework 253
§2 Universality Principle 253
A. Protecting Animals Abroad through the Universality Principle 253
B. Universality Principle in the Extraterritoriality Framework 258
§3 Effects Principle 259
A. Protecting Animals Abroad through the Effects Principle 259
B. Effects Principle in the Extraterritoriality Framework 263
§4 Interim Conclusion 263
Synthesis of Direct Possibilities and Case Groups in the Extraterritoriality Framework 265
8. Parameters of Substantive Law 273
§1 Moral Trajectory of Extraterritorial Animal Law 273
A. Moral Trajectory in General International Law 274
I. Global Justice 274
II. The Precautionary Principle 276
B. Moral Trajectory in Trade Law 278
C. Moral Trajectory in Animal Law 280
I. From Property Protection to Animal Protection 280
II. Toward Pathocentrism 282
III. Pathocentrism and the Moral Trajectory of Animal Law 286
§2 Moral Consistency 286
§3 Guide to a Hierarchy of Extraterritorial Animal Laws 290
A. Minimum Standards 290
B. Hierarchy of Presumptions 292
I. Presumption in Favor of Transparency 293
II. Presumption in Favor of Recognizing Animal Interests 296
III. Presumption in Favor of Integrating Animal Interests 296
IV. Presumption in Favor of Extensive and Detailed Laws 297
V. Presumption in Favor of Adequate Interest Balancing 299
VI. Presumption in Favor of Prohibitions 303
VII. Presumption in Favor of Animal Rights 304
§4 Duty to Protect and Respect Animals Across the Border 307
A. Learning from the “Protect, Respect and Remedy” Framework 308
B. The “Protect, Respect and Remedy” Framework in Animal Law 311
§5 Interim Conclusion 316
9. Comparative Vantage Points of Extraterritorial Animal Law 319
§1 Equivalence of Criminal, Administrative, and Civil Animal Law 320
§2 Applying Constitutional Animal Law Extraterritorially 321
A. Brazil and Egypt: From Conservationism to Pathocentrism 322
B. Germany, Luxembourg, and the European Union: Animal Protection as a State Objective 325
C. India: From the Duty of Compassion to Animal Rights 328
D. Switzerland: Animal Dignity 330
E. Constitutional Animal Law in the Extraterritoriality Debate 334
§3 Applying Criminal Animal Law Extraterritorially 334
A. Basics of Criminal Animal Law 334
B. Advanced Criminal Animal Laws 335
C. Advanced Liabilities 340
D. Corporate Criminal Liability 341
§4 Applying Administrative Animal Law Extraterritorially 344
A. Basics of Administrative Animal Law 344
B. Protection of Farmed Animals 346
C. Transportation Standards 354
D. Slaughter Standards 358
§5 Interim Conclusion 363
10. Legality of Extraterritorial Jurisdiction under International Law 365
§1 Countering Extraterritorial Animal Law 365
A. Objections 365
B. Forms of Protest 370
§2 Conflicts of Animal Laws 372
A. Addressing Cultural Clashes 372
B. Emergence and Classification of Jurisdictional Conflicts 373
C. Preventing and Mitigating Jurisdictional Conflicts 376
I. The Rule of Law and the Prohibition of Double Jeopardy 376
II. Principle of Reasonableness 378
D. Resolving Jurisdictional Conflicts 380
I. Unilateral Resolution 380
II. Bilateral and Multilateral Resolution 383
§3 International Legal Limits 385
A. Principle of Sovereign Equality 386
B. Right to Territorial Integrity 387
C. Domaine Réservé and the Principle of Nonintervention 388
D. Principle of Self-Determination of Peoples 392
E. Influence of the Extraterritoriality Framework on International Legal Limits 394
§4 Legal Consequences of Exorbitant Extraterritorial Animal Law 395
§5 Interim Conclusion 398
11. Conclusion: Toward Legal Pluralism, Postcolonialism, and Interspecies Justice 401
Bibliography, Newspaper Articles, and Press Releases 411 Index 449
Preface and Acknowledgments
Global entanglements and challenges abound in animal law, as multinationals rise in number and power, production facilities move to other countries, and animals are shipped for use and slaughter across borders by the millions. None of these issues have preoccupied international law, which has been engaged in its own fights against poverty, corruption, the sex trade, and environmental degradation. This focus on other matters has eroded the trust and confidence of states in the regulatory powers of international law to tackle matters of animal law. At the same time, it has become increasingly difficult for states to gain legal certainty about whether or under what circumstances they themselves can protect animals in cases involving a cross-border element. Even worse, many states do not even know whether it is worth protecting animals within their border, as they have a deep and abiding fear of outsourcing and consider industries that use animals reliable and valuable taxpayers, even as they probe the limits of the law. These developments paint a dystopian future for animals, one in which corporations reign law, the free market equates to exploitation, and globalization translates as “globalization of animal cruelty.”1
Many believe the best way for states to resolve this dilemma is to conclude a treaty. In theory, finding consensus through international agreements would be an admirable and possibly an effective accomplishment, but chances of uniting states in their quest to protect animals are slim and only marginally promising in case of success because treaties unnecessarily boil consensus down to the lowest common denominator. Others argue there is an alternative and better way to respond to these challenges by enabling states to regain
1 Steven White & Deborah Cao, Introduction: Animal Protection in an Interconnected World, in Animal Law and Welfare: International Perspectives 1, 2 (Deborah Cao & Steven White eds., 2016).
Preface and Acknowledgments
their regulatory power and begin forming a dense and overlapping jurisdictional net across borders. There are good reasons to believe that extraterritorial jurisdiction—the authority of states to prescribe law across state borders—can do just this. It can fill gaps in transboundary governance, offer perspective-taking through legal pluralism, and encourage international treaty efforts. Extraterritorial jurisdiction is an established legal tool in human rights law, criminal law, antitrust law, securities law, and environmental law, but its boundaries remain fuzzy, its usage selective, and its potential not fully tapped. Clarifying the boundaries of extraterritorial jurisdiction, pushing it toward coherence, and harnessing its power to protect animals across borders has been the goal of this work.
In this book, I challenge the law of jurisdiction to become more definitionally precise, and I propose a sophisticated extraterritoriality framework that can be used to categorize and assess jurisdictional norms by their importance, reach, and legality. My main claim is that the law of jurisdiction cannot afford to turn a blind eye to the struggles of animal law, in particular, because it carries potential to bring to a halt and prevent races to the bottom, which we owe animals on grounds of justice. The topic invites readers to engage in broader discussions about global justice, interspecies ethics, and the ever-lingering struggle between economics and social welfare. But the book also aims to find closure and ways to resolve these controversies. It has at its heart a detailed catalogue of jurisdictional options for states to strengthen their animal laws under the lex lata. The core purpose and primary motivation of asserting jurisdiction over animals is to protect them, but doing so can also amount to an act of oppression by reaffirming animals’ controversial status as commodities and objects of law. As Kristen Stilt eloquently put it:
Animals did not ask us, as humans, to make laws that apply to them. Nor did we ask them if they wanted our laws. Under an alternative framework, we might relate to animals as differing self-governing societies relate to one another. Instead, we impose our jurisdiction and our laws on animals. We use law to put animals into categories of our own choosing and control them, both conceptually and physically. We use law not to recognize, embrace, cultivate and enable their own innate characteristics and abilities but rather to position them in a way that is convenient and conducive to our own wants and needs. Animals do not have the ability to challenge us on our own terms because they are not formally part of any society’s lawmaking process.2
As Stilt implies, we must go beyond simply expanding the status quo of the law, and begin reformulating and repurposing law so that it becomes more inclusive. I believe there are reasons and ways to realize this claim in the law of jurisdiction, which I do by proposing reasonable lex ferenda options that respect animals as self-determining social and legal agents. But why advocate for extraterritorial jurisdiction in an age of postcolonialism, you may ask. After all, both extraterritorial jurisdiction and animal law can be and have been used to oppress minorities and nonhegemonic ways of living and being. Once combined, their potential to feed neocolonial power structures significantly rises, and efforts to counter it must be multiplied. These dangers, though compelling and ubiquitous, do not prompt us to recoil
2 Kristen Stilt, Law, in Critical Terms for Animal Studies 197, 198 (Lori Gruen ed., 2018).
Preface and Acknowledgments xv from extraterritorial jurisdiction because it would mean fully succumbing law, and, with it, the regulation of social life, to the law of the market. This book takes serious these competing demands and seeks to reconcile them by providing explanations and precautions that help us avoid reinscribing existing forms of oppression and creating new wrongs through extraterritorial jurisdiction. Taken as a whole, extraterritorial jurisdiction in animal law is as much a quest for justice for animals as it is for the empowerment of human people.
As I sought to understand the role the law of jurisdiction plays in a world of complex and diverse social, legal, and political relations, I was quickly humbled by the task. I initially thought I would write a very focused work on a niche subject, but one line of inquiry opened another. The tricky questions raised by applying the law of jurisdiction to animals captured my imagination and propelled me through my research. Though the discussion about protecting animals through extraterritorial jurisdiction has not yet gained a strong foothold in political and academic discourse, we see the first traces of this practice emerge across the board. This is encouraging because the global problems it sets to tackle are more pressing than ever. It is my profound hope that this book will make a difference in our private and public thinking about global justice and animals, and, ultimately, in the policies we formulate.
This work was accepted by the Faculty of Law of the University of Basel as a doctoral thesis in November 2016 and takes into account literature, judicature, and legislation up to January 2019.I have received much encouragement and the support of many people and institutions in writing this book, for which I am deeply grateful. I would like to thank the Swiss National Science Foundation (SNSF), whose excellent funding scheme (Doc.CH) enabled me to pursue my research for this book project full-time for several years, and whose generous open access funding makes this book accessible to people from all disciplines and outside. My heartfelt thanks go to the Haldimann-Stiftung and the University of Basel for their generous impetus grant, and to the Schweizerische Universitätskonferenz (SUK) and the University of Basel for their generous financial support of the doctoral program, “Law and Animals: Ethics at Crossroads,” at the Law Faculty of the University of Basel.
During my research and writing, I have greatly profited from Professor Anne Peters’ guidance and expertise. She has been a source of inspiration in many ways, and I am especially thankful for her open-mindedness, academic versatility, and deep dedication to both respecting and challenging the law. Professor Christine Kaufmann did me the honor of supervising this book project and my work as an assistant for the Swiss Center of Expertise in Human Rights. Throughout this time, she offered me excellent opportunities to challenge and put to the test the strengths and promises of the law of extraterritoriality, and gain a deeper understanding of its role in international relations. I owe many thanks to Dr. Gieri Bolliger for serving as an expert member of the committee that evaluated my work, and for allowing me to benefit from his long-standing expertise in animal law.
During my research on this topic, I was offered the unique opportunity to join the renowned Center for Animal Law Studies at the Lewis & Clark Law School in Portland, Oregon, as a visiting scholar. My deepest thanks go to Professor Kathy Hessler, Professor Pamela Frasch, Natasha Dolezal, and Lindsay Kadish for welcoming me so warmly to the CALS community and giving me an insight into the academic rigor with which you advance animal law and explore its intersections. I want to thank the Antelope Career Program of the University of Basel, organized by Dr. Andrea Flora Bauer and Patricia Zweifel, who
Preface and Acknowledgments
played a crucial role in empowering me, and many other women, in academia. This book has benefited from the valuable advice of my colleagues in the doctoral program and personal conversations with Dr. Janine Dumont-Rosas, for which I am very grateful. I also want to thank Ellen Campbell for kindly helping me solve the puzzles of encapsulated postscripts.
Versions of the proposals and arguments this book makes were presented at Harvard Law School in Cambridge, Massachusetts, the Center for Animal Law Studies at Lewis & Clark Law School in Portland, Oregon, the Pace University and New York University in New York, the University of Vienna in Austria, and the University of Basel in Switzerland. At these events, I was fortunate enough to profit from challenging questions from the audiences and organizers, and the intriguing conversations I had with them. I also want to thank Professor Will Kymlicka for sharing his thoughts about the book and offering advice as I began my postdoctoral work under his supervision at Queen’s University, Kingston. Special thanks go to the anonymous referees at Oxford University Press, whose encouragement and recommendations have helped make this book a better version of what it was before. I’d especially like to thank my editor at Oxford University Press, Blake Ratcliff, for his sustained interest in the subject and his willingness and patience to respond to any special requests I had, as well as Meera Seth and David Lipp, who took over these tasks during Blake’s muchdeserved parental leave. My heartfelt thanks also go to the many people working behind the scenes at Oxford University Press, including my copy editor, project manager, typewriter, and indexer. Of all people, I am most indebted to Dr. Kali Tal for her meticulous editing, for pushing me beyond my boundaries, and for her unwavering enthusiasm for the book.
I have gained all the confidence to write this book from two people who, like no other, have shown a deep understanding for the many hours I spent poring over books, and who have expressed their unwavering trust in this project: Bobby and Balou. I hope they approve it was worth the wait. No words can convey my gratitude for the unconditional support of my family—my parents, my brothers, and my partner—and of Sarah Small and Steve Schreiner, who have become a solid part of it. Thank you.
Cambridge, February 2019
List of Cases
International cases
International Court of Justice (ICJ)
Acquisition of Polish Nationality, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 7 (September 15).
Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Judgment, 2010 I.C.J. Rep. 639 (May 24).
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. and Herz. v. Serb. and Monten.), Preliminary Objections, 1996 I.C.J. Rep. 595 (May 28).
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. and Montenegro), Judgment, 2007 I.C.J. Rep. 43 (February 26).
Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), Judgment, 2002 I.C.J. Rep. 3 (February 14).
Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), Judgment, 1970 I.C.J. Rep. 3 (February 5).
Case Concerning the Payment of Various Serbian Loans Issued in France (Fr. v. Kingdom of Serbs, Croats and Slovenes), Judgment, 1929 P.C.I.J. (ser. A) No. 20/21 (July 12).
Certain Criminal Proceedings in France (DRC v. France), Order, 2003 I.C.J. Rep. 102 (June 17).
Certain German Interests in Polish Upper Silesia (Ger. v. Pol.), Judgment, 1926 P.C.I.J. (ser. A) No. 7 (May 25).
Colombian-Peruvian Asylum Case (Colom. v. Peru), Judgment, 1950 I.C.J. Rep. 266 (November 20).
Corfu Channel Case (U.K. & N. Ir. v. Alb.), Judgment, 1949 I.C.J. Rep. 4 (April 9).
Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), Judgment, 1989 I.C.J. Rep. 15 (July 20).
Fisheries Case (U.K. v. Nor.), Judgment, 1951 I.C.J. Rep. 116 (December 18).
Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, 1997 I.C.J. Rep. 7 (September 25).
List of Cases
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. Rep. 16 (June 21).
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226 (July 8).
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14 (June 27).
Nationality Decrees issued in Tunis and Morocco (Fr. v. U.K.), Judgment, 1923 P.C.I.J. (ser. B) No. 4 (February 7).
Nottebohm Case (Liech. v. Guat.), Judgment (second phase), 1955 I.C.J. Rep. 4 (April 6).
Oil Platforms (Iran v. U.S.), Judgment, 2003 I.C.J. Rep. 161 (November 6).
Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. Rep. 174 (April 11).
Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests Case (N.Z. v. France), Order, 1995 I.C.J. Rep. 288 (September 22).
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 I.C.J. Rep. 15 (May 28).
S.S. Lotus (Fr. v. Turk.), Judgment, 1927 P.C.I.J. (ser. A) No. 10 (September 7).
Western Sahara, Advisory Opinion, 1975 I.C.J. Rep. 12 (October 16).
Special international courts and tribunals
Aguas del Tunari v. Bolivia, ICSID Case No. ARB/02/3, Decision on Jurisdiction, Oct. 21, 2005.
Award between the United States and the United Kingdom Relating to the Rights of Jurisdiction of the United States in the Bering’s Sea and the Preservation of Fur Seals (U.S. v. U.K.), R.I.A.A. 263 (Arbitral Tribunal 1893).
Flegenheimer Case (U.S. v. Italy), 182 R.I.A.A. 327 (United States–Italian Conciliation Commission 1958).
Hussein Nuaman Soufraki v. United Arab Emirates, ICSID Case No. ARB/02/7, Decision of the ad hoc Committee, June 5, 2007.
Island of Palmas Case (U.S. v. Neth.), 2 R.I.A.A. 829 (Perm. Ct. Arb. 1928).
Prosecutor v. Gojko Jankovic, Case No. IT-96-23/2-AR11bis2, Decision on Rule 11bis Referral (Nov. 15, 2005).
Rompetrol v. Romania, ICSID Case No. ARB/06/3, Decision on Respondent’s Preliminary Objections on Jurisdiction and Admissibility, Apr. 18, 2008.
SOABI v. Senegal, ICSID Case No. ARB/82/1, Award, Feb. 25, 1988.
The Juno Trader (Saint Vincent and the Grenadines v. Guinea-Bissau), Case No. 13, Judgment, 2004 ITLOS Rep. 17 (Dec. 18).
Tokios Tokeles v. Ukraine, ICSID Case No. ARB/02/18, Award, July 26, 2007.
List of Cases xix
Inter-American Court of Human Rights (IACtHR)
International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts. 1 and 2 of the American Convention on Human Rights), Advisory Opinion OC-14/94, Inter-Am. Ct. H.R. (ser. A.) No. 14 (Dec. 9, 1994).
Proposed Amendments to the Naturalisation provision of the Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-Am. Ct. H.R. (ser. A) No. 4 (Jan. 19, 1984) [IACtHR, Naturalisation Costa Rica].
European Court of Human Rights (ECtHR)
Cha’are Shalom Ve Tsedek v. France, 350 Eur. Ct. H.R. 233 (2000).
Fayed v. United Kingdom, 294-B Eur. Ct. H.R. (ser. A.) (1994).
Jorgic v. Germany, 2007-IX Eur. Ct. H.R. 1 (2007).
Rasmussen v. Denmark, 87 Eur. Ct. H.R. (ser. A.) (1984).
European Court of Justice (ECJ)
Case 265/87, Schräder HS Kraftführer GmbH & Co KG v. Hautpzollamt Gronau, 1989 E.C.R. 2237.
Case 36/74, Walrave and Koch v. Union Cycliste Internationale, 1974 E.C.R. 1405.
Case 48/69, Imperial Chemical Industries Ltd. v. Commission of the European Communities [ICI v. Commission], 1972 E.C.R. 619.
Case C-1/96, The Queen and Minister of Agriculture, Fisheries and Food, ex parte Compassion in World Farming Limited, 1998 E.C.R. I-1251.
Case C-27/76, United Brands v. Commission, 1978 E.C.R. 207.
Case C-286/98, Stora Kopparbergs Bergslags AB v. Commission of the European Communities, 2000 E.C.R. I-9925.
Case C-424/13, Zuchtvieh-Export GmbH v. Stadt Kempten, 2015 E.C.R. I-1251.
Case C-6/72, Continental Can v. Commission, 1973 E.C.R. 215.
Case C-97/08 P, Akzo Nobel NV et al. v. Commission of the European Communities, 2009 E.C.R. I-8237.
Case T-102/96, Gencor Limited v. EC Commission, 1999 E.C.R. II-753.
Case T-11/89, Shell v. Commission, 1992 E.C.R. II-757.
Case T-201/04, Microsoft Corp. et al. v. Commission, 2007 E.C.R. II-3601.
Case T-210/01, General Electric Company v. Commission, 2005 E.C.R. II-5575.
Joined Cases 89/85, 104/85, 114/85, 116-7/85, and 125-9/85, A. Ahlström Osakeyhtiö v. Commission, 1988 E.C.R. 5214.
Joined Cases C-6/73 and C-7/73, Commercial Solvents, 1974 E.C.R. 223.
Joined Cases T-71/03, T-74/03, T-87/03, and T-91/03, Tokai Carbon v. Commission, 2005 E.C.R. II-00010.
Commission decisions
Commission Decision of 14 December 1972, Relative to a Procedure for Application of Article 86 of the Treaty Establishing the European Economic Community (IV/26.911 –ZPJA/CSC –ICI) (72/457/EEC), 1972 O.J. (L 299) 51.
Commission Notice, Guidelines on the Effect on Trade Concept Contained in Articles 81 and 82 of the Treaty (2004/C 101/07), 2004 O.J. (C 101) 81.
World Trade Organization (WTO) reports
Appellate Body Report, Argentina—Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WTO Doc. WT/DS56/AB/R (adopted Apr. 22, 1998).
Appellate Body Report, Australia—Measures Affecting the Importation of Salmon, WTO Doc. WT/DS18/AB/R (adopted Nov. 6, 1998) [Australia—Salmon, AB Report].
Appellate Body Report, Australia—Measures Affecting the Importation of Salmon— Recourse to Article 21.5 of the DSU by Canada, WTO Doc. WT/DS18/RW (adopted Mar. 20, 2000).
Appellate Body Report, Australia—Measures Affecting the Importation of Apples from New Zealand, WTO Doc. WT/DS367/AB/R (adopted Dec. 17, 2010) [Australia— Apples, AB Report].
Appellate Body Report, Brazil—Measures Affecting Imports of Retreaded Tyres, WTO Doc. WT/DS332/AB/R (adopted Dec. 17, 2007) [Brazil—Retreaded Tyres, AB Report].
Appellate Body Report, Canada— Certain Measures Concerning Periodicals, WTO Doc. WT/DS31/AB/R (adopted July 30, 1997) [Periodicals, AB Report].
Appellate Body Report, Canada— Continued Suspension of Obligations in the EC— Hormones Dispute, WTO Doc. WT/DS321/AB/R (adopted Nov. 14, 2008) [Canada— Continued Suspension, AB Report].
Appellate Body Report, EC— Conditions for the Granting of Tariff Preferences to Developing Countries, WTO Doc. WT/DS246/AB/R (adopted. Apr. 20, 2004) [EC— Tariff Preferences, AB Report].
Appellate Body Report, EC—Measures Affecting Asbestos and Products Containing Asbestos, WTO Doc. WT/DS135/AB/R (adopted Apr. 5, 2001) [Asbestos, AB Report].
Appellate Body Report, EC—Measures Affecting Meat and Meat Products, WTO Doc. WT/DS26/AB/R, WT/DS48/AB/R (adopted Feb. 13, 1998) [EC—Hormones, AB Report].
Appellate Body Report, EC—Measures Prohibiting the Importation and Marketing of Seal Products, WTO Doc. WT/DS400/AB/R, WT/DS4001/AB/R (adopted June 18, 2014) [Seals, AB Report].
Appellate Body Report, EC—Trade Description of Sardines, WTO Doc. WT/DS231/AB/ R (adopted Oct. 23, 2002).
Appellate Body Report, EC and Certain Member States—Measures Affecting Trade in Large Civil Aircraft, WTO Doc. WT/DS316/AB/R (adopted June 1, 2011) [EC—Large Civil Aircraft, AB Report].
Appellate Body Report, Japan—Measures Affecting Agricultural Products, WTO Doc. WT/DS76/AB/R (adopted Mar. 19, 1999) [Japan—Agricultural Products II, AB Report].
List of Cases xxi
Appellate Body Report, Japan—Taxes on Alcoholic Beverages, WTO Doc. WT/DS8/ AB/R, WT/DS10/AB/, WT/DS11/AB/R (adopted Nov. 1, 1996) [Japan—Alcoholic Beverages, AB Report].
Appellate Body Report, Philippines—Taxes on Distilled Spirits, WTO Doc. WT/DS396/ AB/R, WT/DS403/AB/R (adopted Jan. 20, 2012) [Philippines—Distilled Spirits, AB Report].
Appellate Body Report, US—Anti-Dumping Measures on Certain Hot-Rolled Products from Japan, WTO Doc. WT/DS184/AB/R (adopted Aug. 23, 2001).
Appellate Body Report, US—Final Anti-Dumping Measures on Stainless Steel from Mexico, WTO Doc. WT/DS344/AB/R (adopted May 20, 2008).
Appellate Body Report, US—Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/AB/R (adopted Nov. 6, 1998) [Shrimp/Turtle I, AB Report].
Appellate Body Report, US—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WTO Doc. WT/DS285/AB/R (adopted Apr. 20, 2005).
Appellate Body Report, US—Measures Affecting the Production and Sale of Clove Cigarettes, WTO Doc. WT/DS406/AB/R (adopted Apr. 14, 2012) [US—Clove Cigarettes, AB Report].
Appellate Body Report, US—Subsidies on Upland Cotton, WTO Doc. WT/DS267/AB/ R (adopted Mar. 21, 2005) [US—Subsidies on Upland Cotton, AB Report].
Mutually Agreed Solution, Canada—Tax Exemptions and Reductions for Wine and Beer, WTO Doc. G/L/806/Add. 1, G/SCM/D72/a/Add. 1, WT/DS354/2 (adopted Dec. 23, 2008).
Panel Report, Argentina—Measures Affecting the Export of Bovine Hides and the Import of Finished Leather, WTO Doc. WT/DS155/R (adopted Feb. 16, 2001) [Argentina— Hides and Leather, Panel Report].
Panel Report, Belgium—Belgian Family Allowances, WTO Doc. G/32–1S/59 (adopted Nov. 7, 1952).
Panel Report, Canada—Administration of the Foreign Investment Review Act, WTO Doc. L/5504—30S/140 (not adopted, circulated Feb. 7, 1984).
Panel Report, Canada—Measures Affecting Exports of Unprocessed Herring and Salmon, WTO Doc. L/6268—35S/98 (adopted Mar. 22, 1988) [Herring and Salmon, Panel Report].
Panel Report, China—Measures Affecting Trading Rights and Distribution Services of Certain Publications and Audiovisual Entertainment Products, WTO Doc. WT/DS363/ R (adopted Jan. 19, 2010) [China—Audiovisuals, Panel Report].
Panel Report, Dominican Republic—Measures Affecting the Importation and Internal Sale of Cigarettes, WTO Doc. WT/DS302/R (adopted May 19, 2005).
Panel Report, EC— Conditions for the Granting of Tariff Preferences to Developing Countries, WTO Doc. WT/DS246/R (adopted Apr. 20, 2004).
Panel Report, EC—Measures Affecting the Approval and Marketing of Biotech Products, WTO Doc. WT/DS291/R, WT/DS292/R, WT/DS293/R (adopted Nov. 21, 2006) [EC—Biotech Products, Panel Report].
Panel Report, EC—Measures Prohibiting the Importation and Marketing of Seal Products, WTO Doc. WT/DS400/R, WT/DS4001/R (adopted June 18, 2014) [Seals, Panel Report].
List of Cases
Panel Report, EC—Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins, WTO Doc. L/6627—37S/86 (adopted Jan. 25, 1990).
Panel Report, Japan—Tariff Imports on Spruce, Pine, Fir (SPF) Dimension Lumber, WTO Doc. L/6470—36S/167 (adopted July 19, 1989) [Japan—Lumber, Panel Report].
Panel Report, Korea—Measures Affecting Government Procurement, WTO Doc. WT/ DS163/R (adopted June 19, 2000).
Panel Report, Thailand— Customs and Fiscal Measures on Cigarettes from the Philippines, WTO Doc. WT/DS371/R (adopted July 15, 2011) [Thailand—Cigarettes (Philippines), Panel Report].
Panel Report, US—Imports of Certain Automotive Spring Assemblies, WTO Doc. L/ 5333—30S/107 (adopted May 26, 1983).
Panel Report, US—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WTO Doc. WT/DS285/R (adopted Nov. 10, 2004).
Panel Report, US—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WTO Doc. WT/DS381/R (adopted June 13, 2012) [Tuna/Dolphin III, Panel Report].
Panel Report, US—Prohibition of Imports of Tuna and Tuna Products from Canada, WTO Doc. L/5198—29S/91 (adopted Feb. 22, 1982) [US—Tuna I, Panel Report].
Panel Report, US—Restrictions on Imports of Tuna, WTO Doc. DS21/R—39S/155 (not adopted, circulated Sept. 3, 1991) [Tuna/Dolphin I, Panel Report].
Panel Report, US—Restrictions on Imports of Tuna, WTO Doc. DS29/R (not adopted, circulated June 16, 1994) [Tuna/Dolphin II, Panel Report].
Panel Report, US—Sections 301–310 of the Trade Act 1974, WTO Doc. WT/DS152/R (adopted Jan. 27, 2000).
Panel Report, US—Standards for Reformulated and Conventional Gasoline, WTO Doc. WT/DS2/R (adopted May 20, 1996) [US—Gasoline, Panel Report].
National cases
Australia
ACCC v. Australian Egg Corporation Limited [2016] FCA 69 (Feb. 10, 2016) (Austl.).
Australian Competition and Consumer Commission v. Pirovic Enterprises Pty Ltd. (No. 2) [2014] FCA 1028 (Sept. 23, 2014) (Austl.).
CSR v. Wren (1997) 44 N.S.W.L.R. 463 (C.A. NSW) (Austl.).
Belgium
Hof van Cassatie [Cass.] [Court of Cassation], May 26, 1978, Stagno v. Vanhoyland q.q., RW 846 (1978–9) (Belg.).
Brazil
ADI 1, 856-6/RJ (1998), Sept. 3, 1998 (Braz.).
RE No. 153.531-8/SC (1997), June 3, 1997 (Braz.).
List of Cases xxiii
Canada
Amfac v. Int’l Systems & Controls Corp., [1981] 654 P.2d 1092 (Ore Ct. App.) (Can.).
Association Canadienne Contre l’Impunité (ACCI) v. Anvil Mining Ltd., [2012] QCCA 117 (Can.).
Canadian Dredge and Dock Co. Ltd. v. The Queen, [1985] 1 SCR 662 (Can.).
R v. Hape, [2007] 2 SCR 292 (Can.).
France
Cour de cassation [Cass.] [Supreme Court for Judicial Matters], Recueil Dalloz Sirey 395, 1991, “Serre et Régnier” (Fr.).
Germany
Appellationsgericht Berlin, Dec. 21, 1965, North-Transylvania Nationality Case (Ger.).
Appellationsgericht Kassel, Oct. 5, 1990, NStZ 1991, 443–5 (Ger.).
BGHSt 5, 230, 234, NJW 510, 1954 (Ger.).
BGHZ 173, 246, NJW 2689, 2007 “Trihotel” (Ger.).
BVerfG, May 16, 1995, 1 BvR 1087/91 (Ger.).
BVerfG, Dec. 13, 2006, 1 BvR, 2084/05 (Ger.).
BVerfG, Sept. 28, 2009, 1 BvR 1702/09 (Ger.).
BVerfG, Nov. 6, 2001, 1 BvR 1783/99 (Ger.).
BVerwG, 3 C 30.05, Nov. 23, 2006 (Ger.).
India
Animal Welfare Board of India v. A. Nagaraja et al., AIR 2014 SC 547 (India).
Centre for Environment Law, WWF 1 v. Union of India et al., AIR 2013 8 SC 234 (India).
Mohd. Habib v. State of Uttar Pradesh, Civil Misc. Writ Petition No. 38469 of 1994 (HC Allahabad 1997) (India).
Mohd. Hanif Quareshi et al. v. The State of Bihar, AIR 1959 SC 629 (India).
Narayan Dutt Bhatt v. Union of India (UOI) et al., Writ Petition No. 43 of 2014 (HC Uttarakhand at Nainital 2014) (India).
N.R. Nair et al. v. Union of India (UOI) et al., AIR 2000 Ker 340 (India).
N.R. Nair et al. v. Union of India (UOI) et al., AIR 2001 SC 2337 (India).
People for Animals et al. v. State of Goa et al., Writ Petition No. 347 of 1996 (HC Bombay 1997) (India).
Shriomani Gurudwara Prabandhak Committee, Amritsar v. Shri Somnath Dass et al., AIR 2000 SC 1421 (India).
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jammat et al., AIR 2006 SC 212 (India).
Vidya Varuthi Thirtha v. Balusami Ayyar, 24 BOMLR 629 (1922) (India).
Israel
HCJ 6446/96 Cat Welfare Society v. Arad Municipality IsrSC 55(1) 769 (1996) (Isr.).
HCJ 9232/01 Noah v. Att’y General 215 PD (2002–2003) (Isr.).
xxiv List of Cases
LCA 1684/96 Let the Animals Live v. Hamat Gader 51(3) PD 832 (1997) (Isr.).
LCA 4217/12 Mamut v. Ministry of Agriculture (2012) (Isr.).
LCA 537/08 Kagan v. Unicol (2008) (Isr.).
Netherlands
Hoge Raad der Nederlanden (HR) (Supreme Court of the Netherlands) Nov. 13, 1951, NJ 1951, 42 (Public Prosecutor v. L.) (Neth.).
Switzerland
AppGer Basel, Jan. 15, 2019, VG.2018.1 (AG.2019.40) (Switz.).
Bundesgericht [BGer] [Federal Supreme Court] Mar. 17, 1982, Entscheidungen des schweizerischen Bundesgerichts [BGE] 108 II 122 (Switz.).
BGer Aug. 27, 1991, BGE 117 II 432 (Switz.).
BGer Dec. 12, 1991, BGE 117 II 570 (Switz.).
BGer Nov. 15, 1994, BGE 120 II 331 (Switz.).
BGer Oct. 29, 2001, BGE 128 III 92 (Switz.).
BGer Oct. 7, 2009, 2C_421/2008 (Switz.).
BGer Oct. 7, 2009, 2C_422/2008 (Switz.).
BGer Feb. 8, 2010, 4A_306/2009 (Switz.).
BGer Sept. 26, 2011, BGE 137 III 550 (Switz.).
VGer Zürich, Apr. 5, 2017, VB.2016.00048 (Switz.).
United Kingdom
Adams v. Cape Industries PLC [1990] Ch. 433, [1990] 2 WLR 786 (U.K.).
Amalgamated Investment & Property Co. v. Texas Commercial Bank [1982] QB 84 (U.K.).
DHN Food Distributors Ltd. v. Tower Hamlets London Borough Council [1976] 1 WLR 852 (U.K.).
DPP v. Doot [1973] AC 807 (U.K.).
DPP v. Stoenhouse [1978] AC 55 (U.K.).
Ebbw Vale Urban District Council v. South Wales Traffic Area Licensing Authority [1951] 2 KB 366 (U.K.).
Gold Coast Ltd. v. Caja de Ahorros del Mediterraneo [2001] EWCA Civ. 1806 (U.K.).
Hodges v. Humkin, 2 Bulst. 139 [1615] 80 KB 1015 (U.K.).
In re (FG) Films [1953] 1 WLR 484 (U.K.).
Macleod v. A.G. for N.S.W. [1891] AC 455 (U.K.).
Prest v. Petrodel Resources Limited et al. [2013] 2 AC 415 (U.K.).
Provimi Ltd. v. Roche Products Ltd. et al. [2003] EWHC 961 (Comm) (U.K.).
R v. Burke, Casey and Mullady (1868) 11 Cox C.C. 138 (U.K.).
R v. Casement [1917] 1 KB 98 (U.K.).
R v. Elling [1945] AD 234 (U.K.).
R v. Jones [2007] 1 AC 36 (U.K.).
R v. Lynch [1903] 1 KB 444 (U.K.).
Re Southard and Co. Ltd. [1979] 1 WLR 1198 (U.K.).
Salomon v. A. Salomon & Co. Ltd. [1897] AC 22 (U.K.).
Smith, Stone and Knight v. Birmingham [1939] 4 All. E.R. 116 (U.K.).
Stone & Rolls v. Moore Stephens [2009] 1 AC 1391 (U.K.).
Tesco Supermarkets Ltd. v. Nattrass [1972] AC 153 (U.K.).
Compania Naviera Vascongado v. SS Cristina [1938] AC 485 (U.K.).
Viscound Simonds in Metliss v. National Bank of Greece [1958] AC 509 (U.K.).
United States
Arnold v. Phillips, 117 F.2d 497 (5th Cir. 1941) (U.S.).
Associated Vendors Inc. v. Oakland Meat Co., 210 Cal. App.2d 825 (1962) (U.S.).
Association des Éleveurs de Canards et d’Oies du Québec v. Becerra, 870 F.3d 1140 (9th Cir. 2017) (U.S.).
Bowoto v. Chevron Corp., 312 F. Supp. 2d 1299 (N.D. Cal. 2004) (U.S.).
Carte Blanche (Singapore) Pte. Ltd. v. Diners Club Int’l, 2 F.2d 24 (2d Cir. 1993) (U.S.).
Castleberry v. Branscum et al., 721 S.W.2d 270 (S. Ct. Tex. 1986) (U.S.).
DeWitt Truck Brokers v. W. Ray Fleming Fruit Co., 540 F.2d 681 (4th Cir. 1976) (U.S.).
Doe v. Unocal Corp., 395 F.3d 915 (9th Cir. 2002) (U.S.).
Doe v. Unocal Corp., 395 F.3d 978 (9th Cir. 2003) (U.S.).
Dred Scott v. Sandford, 60 U.S. 393 (1857) (U.S.).
EEOC v. Arabian Am. Oil Co., 857 F.2d 1014 (5th Circ. 1988) (U.S.).
Empagran SA v. F. Hoffmann-LaRoche Ltd., 315 F.3d 388 (D.C. Circ. 2003) (U.S.).
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) (U.S.).
F. Hoffmann-La Roche v. Empagran, 542 U.S. 155 (2004) (U.S.).
Friends of the Earth Inc. et al. v. Mosbacher et al. (also known as v. Watson or as v. Spinelli), 488 F. Supp. 2d 889 (N.D. Cal. 2007) (U.S.).
Hamilton v. Water Whole International Corp., 302 F. Appx. 789 (10th Cir. 2008) (U.S.).
Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993) (U.S.).
House of Koscot Dev. Corp v. Am. Line Cosmetics Inc., 468 F.2d 64 (5th Cir. 1973) (U.S.).
In re Investigation of World Arrangements, 13 FRD 280 (D.D.C. I 1952) (U.S.).
In re Oil Spill by “Amoco Cadiz,” 1984 A.M.C. 2123 (D.C. Ill. 1984) (U.S.).
In re Uranium Antitrust Legislation, 473 F. Supp. 382 (N.D. Ill. 1979) (U.S.).
International Labor Rights Research and Education Fund et al. v. George Bush et al., 954 F.2d 745 (D.C. Cir. 1992) (U.S.).
International Shoe Co. v. Washington, 326 U.S. 310 (1945) (U.S.).
Jones v. Butz, 374 F. Supp. 1284 (S.D.N.Y. 1974) (U.S.).
Justice v. Vercher, Case 18CV17601, Opinion Letter by Judge Knowles, Sept. 17, 2018 (U.S.).
Kimes v. Grossnerc, 195 Cal. App. 4th 1556 (2011) (U.S.).
Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013) (U.S.).
Laker v. Sabena, Belgian World Airlines, 731 F.2d 909 (D.C. Cir. 1984) (U.S.).
Lowendahl v. Baltimore & Ohio Railroad, 247 A.D. 144 (N.Y. App. Div. 1936) (U.S.).
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (U.S.).
Mannington Mills Inc. v. Congoleum Corporation, 595 F.2d 1287 (3d Cir. 1979) (U.S.).
Martinez v. Robledo, 210 Cal. App. 4th 384 (2012) (U.S.).
