撲殺動物作為疫情控制手段之倫理爭議: 觀察德語系國家如何運用強制性先決條件降低民眾的疑慮 Can the Killing of Animals for Disease Control Purposes be Ethically Acceptable? How the Use of Mandatory Preconditions Mitigates Public Concerns in German-speaking Countries

作者: 
Jörg Luy 德國柏林應用倫理學及動物保護研究與諮詢中心(INSTET)創辦人/主任、柏林自由大學獸醫學院動物福利審查長http://www.oie.int/index.php?id=169&L=0&htmfile=chapitre_1.7.6.htm
專題分類: 

撲殺動物作為疫情控制手段之倫理爭議:

觀察德語系國家如何運用強制性先決條件降低民眾的疑慮

Jörg Luy
德國柏林應用倫理學及動物保護研究與諮詢中心(INSTET)創辦人/主任、柏林自由大學獸醫學院動物福利審查長

摘要

依據德國法律,自1972年起凡缺乏「正當性理由」(vernünftiger Grund)而殺害脊椎動物之行為,即構成犯罪事實(動物保護法第17條第1項),然而綜觀全球各國律法,卻只有極少數國家通過類似的禁止法令。由於動物主管部門同時肩負執行動物保護法,以及控制疫情的職責,因此一旦採取殺害動物作為控制疫情的手段時,另一面也往往引起民眾質疑是否符合法令規範的「正當性理由」。

不具「正當性理由」不得殺害脊椎動物之條文,乃基於二原則:一、普遍存在於德語系國家的道德原則──對生命的敬畏(Reverence for Life);二、比例原則(Principle of Proportionality),該原則於德國率先成為法律體系的重要基礎,現今則與「輔助性原則(Principle of Subsidiarity)成為歐盟的權限規範基礎(「歐洲聯盟條約」第5條)。

因此,「正當」殺害脊椎動物必須符合特定先決條件(不只關係到「是否(if)」,也牽涉到「如何(how)」),這樣的前提,不但左右歐盟政策走向,影響所及,也促使世界動物衛生組織(OIE)於2005年針對「基於疫情控制理由人道殺害動物」的情況,確立世界動物福利標準,該標準於其時獲得172個成員國的一致通過。世界動物衛生組織秘書長Bernard Vallat表明這是符合倫理的考量,他說:「針對某些傳染病疫區,雖然有時採取撲殺措施是難以避免的,但世界動物衛生組織會盡一切可能限制此種手段,而改以施打疫苗的方式來達到相同的防疫效果。若一旦除了撲殺沒有其他替代方案時,世界動物衛生組織也建議盡可能採用讓動物減少痛苦的方法。」

關鍵字:動物倫理、動物福利、疫情控制、世界動物福利標準、比例原則、敬畏生命


Can the Killing of Animals for Disease Control Purposes be Ethically Acceptable?

How the Use of Mandatory Preconditions Mitigates Public Concerns in German-speaking Countries

Jörg Luy
Founder and head of the Private Research and Consulting Institute for Applied Ethics and Animal Protection INSTET in Berlin; Animal Welfare Officer of the Veterinary Faculty of the Freie Universität Berlin, Germany.
 

ABSTRACT:

Since1972 killing a vertebrate animal without ‘acceptable justification’ (vernünftiger Grund) constitutes a crime in Germany (Article 17 No. 1 Animal Protection Act). Globally, there are very few countries possessing a similar prohibition. Since both the enforcement of the Animal Protection Act and the responsibility for disease control belong to the duties of the veterinary authorities, the killing of animals for disease control purposes frequently raises the question if there is an ‘acceptable justification’.

The prohibition of killing a vertebrate without ‘acceptable justification’ is based on both Reverence for Life, which is widespread in German-speaking countries, and the Principle of Proportionality, an important discovery initially made in the German legal system, which today (together with the Principle of Subsidiarity) governs the use of EU competences (Article 5, Treaty on European Union).

Therefore, along the way, the idea of specific preconditions for the acceptable killing of vertebrate animals (regarding in particular the question ‘if’, but also ‘how’) has been influencing both EU policy and the global animal welfare standards of the World Organisation for Animal Health (OIE) which in 2005 with its at that time 172 Member States unanimously adopted animal welfare standards for humane killing of animals for disease control purposes. On this occasion OIE Director General Bernard Vallat proved to be in line with the ethical considerations: “For some diseases, applying stamping-out measures to the infected sites is sometimes unavoidable, but the OIE makes every effort to limit the use of such measures by providing for the use of vaccination for disease prevention purposes. When there is no alternative to stamping out, the OIE recommends using methods that are designed to limit animal suffering as far as possible.”

Keywords: Animal ethics, animal welfare, disease control, international animal welfare standards, principle of proportionality, reverence for life


    In recent decades a numberof changes in European laws concerned animals and their position in the legal system. For instance, in Switzerland, Germany, and (recently) Austria animals have been included in the national constitutions. Since this is attributed to changing moral convictions, there is a growing interest in the dynamics behind it. Because scientific research cannot approach people’s moral sense directly, iterations of modelling and forecast are necessary. Thus, there is a need for models which resemble the moral sense and sense of justice. In the Netherlands Cohen et al. (2009, 2012) presented a model to describe the stratification of fundamental moral attitudes to animals in society. According to the authors, the model can serve to monitor the dynamics of fundamental moral attitudes to animals in the public debate over time. In the form of a questionnaire it was used in a number of surveys, for instance on the moral convictions of the people in the Netherlands regarding killing healthy animals for disease control purposes (Cohen et al., 2012). The authors come to the conclusion that after the mass-cullings in Europe between 1997 and 2003 (classical swine fever, food and mouth disease, avian influenza) morality developedfurther, “rendering this [non-vaccination] policy no longer justifiable” (culling = killing not for consumption). For the situation in the German-speaking countries a similar result may be expected.

While the precisetransformation of the Dutch model into a questionnaire belongs to its assets, the power to forecast future developments is limited to identifying trends in repeated surveys, because it does not offer much explanation on how altruistic requests arise. This drawback shall be compensated by the models presented in the following. They are specifically designed to clarify in the long run increasingly, by iterations of modelling and forecast, how altruistic requests develop. They can be used to describe latent stakeholder-expectations and to forecast the influence of a number of parameters on consumer behaviour. They access the state of knowledge from ethics, religions, legislative processes, jurisdiction, opinion polls and expert knowledge. In the following these models shall be applied on the question of ethically acceptable animal disease control in order to find out where today’s animal disease control is not in line with people’s moral sense and sense of justice. For this purpose, the Empathy Model, the Respect Model, and the Dilemma Model shall be briefly introduced.

Three model explanations of popular altruistic requests in German-speakingcountries

The Empathy Model simulates valuations of human actions towards sentient beings. It is a Three-Bridge-Model which associates sensations with empathy, empathy with valuations of human actions, and the latter with prescriptions. The trait to react with pleasant sensations to beneficial environmental influences and with unpleasant sensations to damaging events is widespread within the animal kingdom. Linked to a memory this trait enables individual animals to learn from their experiences. On the part of the animals this trait is the central precondition of the human belief that it is immoral to cause animals unpleasant sensations. Therefore, European Union legislation aims at protecting all sentient beings, when there is “sufficient scientific evidence” of their ability to experience pain, suffering, distress and lasting harm (cp. Preamble 19 of Council Regulation 1099/2009, Preamble 8 of Directive 2010/63/EU and Article 13 of Treaty on the Functioning of the EuropeanUnion). Also humans react with pleasant sensations to beneficial environmental influences and with unpleasant sensations to damaging events. Humans (and perhaps some other species) are even responsive to such environmental influences that are not beneficial or damaging to them, but only to others. This trait is called empathy. If the environmental influence is caused by intentional or careless human action, empathy triggers a valuation of this action. As a rule, actions which cause pleasant sensations are considered acceptable and actions which cause unpleasant sensations are considered unacceptable. On the part of humans, empathy is the central (but not the only) precondition of valuations of human actions. In order to prevent such human actions considered unacceptable, humans use prescriptions. In democracies, human actions considered unacceptable by the majority are legally prohibited. The human belief that it is immoral to cause animals unpleasant sensations grew alongside the increasing knowledge about animals. It is noteworthy that plants have not entered this stage, because there is no sufficient scientific evidence for being sentient so far. Apart from small precursors, European countries began in the 19th century to develop animal protection laws. – Based on these considerations, the Empathy Model carries the following normative message: As long as there is no ethical dilemma, people’s moral sense and sense of justice claims that it is immoral and wrong to cause sentient beings unpleasant sensations intentionally or carelessly. The message substantiates the popular conviction that “one should not treat others in ways that one would not like to be treated.” Most people have no problem with the unidirectional inclusion of animals. Thus, empathy seems to be an even stronger trigger than reciprocity.

The Respect Model simulates valuations of human actions towards beauty (in a broader sense). It is also a Three-Bridge-Model which associatesa number of characteristics with the sensation of beauty, the sensation of beauty with valuations of human actions, and the latter with prescriptions. While the Empathy Model explains valuations of human actions with the motive to avoid unpleasant sensations, the Respect Model explains such valuations with the motive to preserve pleasant sensations. Although there is no general formula to explain what people consider beautiful, it is well known that most people protect whatever causes them a sensation of beauty. The sensation of beauty is a pleasant sensationby definition; in the Respect Model the reverse shall also be true and every phenomenon that causes pleasant sensations is meant by ‘beauty’. Besides empathy, beauty is another trigger of valuations of human actions. Although there is no accounting for taste, each individual claims that entities of beauty must be treated respectfully. In democracies, disrespectful human actions considered unacceptable by the majority are legally prohibited. In the early 20th century two German philosophers, Magnus Schwantje and Albert Schweizer, independently developed ethical concepts they each called ‘Respect (or Reverence) for Life’ (Ehrfurcht vor dem Leben; Schwantje, 1949). Between 1988 and 2003, Austria, Germany and Switzerland introduced – in between humans and things – a new category into law: “Animals are not things.” (Austria: Art. 285a Allg. BGB; Germany: Art. 90a BGB; Switzerland: Art. 641a ZGB). Since 1972 killing a vertebrate animal “without acceptable justification” (ohne vernünftigen Grund) constitutes a crime in Germany (Art. 17 No. 1 German Animal Protection Act); in 2004 Austria followed (Art. 6 Para. 1 Austrian Animal Protection Act), while Switzerland protects the ‘dignity of all creatures’(Art. 120 Swiss Constitution). Since 2002 German law protects nature and landscape both because of “its inherent value” and as the basis for human life and health (Art. 1 German Nature Conservation Act). – Based on these considerations, the Respect Model carries amongst others the following normative message: As long as there is no ethical dilemma, people’s moral sense and sense of justice claims that it is immoral and wrong to kill (higher) animals.

TheDilemma Model simulates decision making in dilemma-like situations. It is a Sequential-Question-Model which describes the way to find the best option in situations without perfect solution. In ethical dilemmas most people arrive at similar decisions. The modelling of this phenomenon comprises the aspects of fitness, necessity and proportionality. The four sequential questions of the Dilemma Model shall be demonstrated by a patient’s choice between treatment options at the dentist. The first question is: What is the objective (that dentist and patient are aiming for)? The second: Are all (treatment) options qualified for this objective to the same extent? The third: Which of those options that reach the objective with an acceptable probability brings about the least disadvantages (for me, the patient)? And the fourth: Do I consider the disadvantages of this option as acceptableor as disproportionate in relation to the objective and the probability to reach it? – The model assumes that human decision making chooses the comparatively best option with the first three steps, while it uses the fourth step to decide, whether or not this option is worth the trouble. If the comparatively best option is not worth the trouble then this is true for all options and we choose none of the options (we waive a treatment). The model can be used for simple dilemmas (costs and benefits adhere to the same individual) and, combined with the Empathy or the Respect Model, for complex dilemmas (where those who pay the costs are not identical with the ones who benefit). Because the four questions represent an accurate model of human decision making in a dilemma, it is advisable to include this model in all regulations on issues where politicians, authorities, or citizens are confronted with ethical dilemmas. If the persons concerned make their decisions under reference to this model it is most likely that the decision is accepted by the people. Therefore, in Germany this model is widely used in legislative processes as well as in jurisdiction to find ethically acceptable solutions for complex dilemmas. If used by lawyers to clarify complex dilemmas the model is called ‘Principle of Proportionality (in the broader sense)’. Today, this model represents a central element in European Union legislation, besides the ‘Principle of Subsidiarity’ (Art. 5 Treaty on European Union). Thus, the European Union is obliged to legislate in accordance with this principle.Biomedical research on laboratory animals represents such a complex dilemma which is legislated that way. For instance, concerning the third question, the EU Directive says: “Member States shall ensure that the number of animals used in projects is reduced to a minimum without compromisingthe objectives of the project.” (Art. 4 Para. 2 Directive 2010/63/EU). And regarding the fourth question: “The project evaluation shall consist in particular of the following: […] a harm-benefit analysis of the project, to assess whether the harm to the animals in terms of suffering, pain and distress is justified by the expected outcome taking into account ethical considerations, and may ultimately benefit human beings, animals or the environment […]” (Art. 38 Para. 2 Directive 2010/63/EU). “[…] Member States shall ensure that a procedure is not performed if it involves severe pain, suffering or distress that is likely to be long-lasting and cannot be ameliorated.” (Art. 15 Para. 2 Directive 2010/63/EU). From the viewpoint of the three models, the German Animal Protection Act and the German National Objective ‘Animal Protection’ (Art. 20a German Constitution) appear to be inspired by one thought: Lawfully causing an animal pain, suffering or harm as well as killing a vertebrate animalis bound to an ‘acceptable justification’ (vernünftiger Grund) according to the ‘Principle of Proportionality’.In order to allow for the application of the Principle of Proportionality in conflicts between animal welfare and basic rights, in particular freedom of science, freedom of religion, and freedom of the arts, the German Constitutionincorporated animal welfare in 2002. – Based on these considerations, the Dilemma Model renders the normative messages of the herein before mentioned models more precisely: As long as there is no ethical dilemma, people’s moral sense and sense of justice claims that it is immoral and wrong to cause sentient beings unpleasant sensations or to kill them. To do so is (only) acceptable in an ethical dilemma if the least-disadvantage-option is chosen (least number / least harm for the individual) AND this option is considered both feasible AND not disproportionate in relation to the objective and the probability to reach it (that is primarily: fit for the purpose to prevent the expected harm of the dilemma with less resulting damage than not doing anything).

What valuation of animal disease control measures is forecasted by the three models?

The objective of killing for disease control is to rapidly remove infected animals and animalsat a high risk of infection to prevent disease spread within the susceptible animal population (Garcia, 2012). Strategies for disease control will usually involve complete depopulation of herds/flocks, and may extend to depopulation across designated areas. Live animals present the major risk of spreading infectious agents, so their killing should be completed as quickly as possible (Galvin et al., 2005). From an animal welfare point of view, reasons for killing during disease outbreaks are (1) eliminating suffering in diseased animals (if there is prolonged suffering or no cure), (2) preventing suffering in susceptible animals, and (3) maintaining a healthy national herd or flock (Raj, 2012). – Applied on the question of ethically acceptable animal disease control the three models suggest that people’s moral sense and sense of justice can accept humane ways of emergency killing of (only) such infected animals that should neither be cured nor could be humanely slaughteredfor human consumption. On the other hand, the models suggest popular outrage concerning (1) inhumane methods of killing (e.g. burying live animals) and (2) mass culling of healthy animals in order to control an infectious disease or to economically support the meat industry in case of an outbreak (practised today on a large scale). Both scenarios should, therefore, be avoided. – The idea of specific preconditions for the acceptable killing of vertebrate animals (according to the Principle of Proportionality) has been influencing both EU policy and the global animal welfare guidelines of the World Organisation for Animal Health (OIE) which in 2005 with its at that time 172 Member States unanimously adopted animal welfare standards for humane killing of animals for disease control purposes. On this occasion OIE Director General Bernard Vallat proved to be in line with the ethical considerations: “For some diseases, applying stamping-out measures to the infected sites is sometimes unavoidable, but the OIE makes every effort to limit the use of such measures by providing for the use of vaccination for disease prevention purposes. When there is no alternative to stamping out, the OIE recommends using methods that are designed to limit animal suffering as far as possible.” (Vallat, 2005). Concerning the question of humane methods of culling, Chapter 7.6 of the OIE Terrestrial Animal Health Code lists the state-of-the-art technology for the humane mass-culling of animals for disease control purposes: “These recommendations […] address the need to ensure the welfare of the animals until they are dead. When animals are killed for disease control purposes, methods used should result in immediate death or immediate loss of consciousness lasting until death; when loss of consciousness is not immediate, induction of unconsciousness should be non-aversive or the least aversive possible and should not cause avoidable anxiety, pain, distress or suffering in animals.” The numerous OIE recommendedtechnologies are available on the market. – Regarding the question of culling healthy animals, science has made good progress to develop special vaccines and diagnostics to differentiate infected from vaccinated animals (DIVA concept), but to date these tools are available for only few infectious diseases and are hardly ever used, because of unresolved problems with trade regulations. But, since not only the public but also the farmers and the national governments are increasingly unwilling to accept the ever rising costs of the stamping out strategy it is to be expected that the trade problems will be solved and the mass culling of healthy animals be stopped in the future. Classical Swine Fever (CSF) is one of the infectious diseases which in the recent decades caused major economic losses in Germany and its neighbour countries. For CSF alternative control strategies including DIVA vaccines and new diagnostic tools which enable veterinarians to differentiate clearly and much faster than in the past between infected and uninfected herds have been developed. In Germany with its specific legislation, there is a strong political will to find an economically viable way to change the OIE stamping out strategy with its mass-culling of healthy animals around infected farms. The OIE recognises its role in identifying the opportunities and challenges presented by new technologies and in setting international standards so that these technologies can be successfully applied to improve animalhealth and welfare and to enhance food security (Vallat, 2013).

Food for thought

Sinceboth the enforcement of the German Animal Protection Act and the responsibility for disease control belong to the duties of the veterinary authorities, the killing of animals for disease control purposes frequently raises the question if there is an ‘acceptable justification’. A number of official veterinarians who are/were members of the Veterinary Association for Animal Welfare (TVT) repeatedly argued, however without consequences, that the killing of healthy animals for disease control purposes is not lawful in Germany (e.g. TVT, 1997). Since the term ‘acceptable justification’ in the law represents a vague legal concept the ongoing debate about its implications is more than twenty years old (cp. Schwabenbauer, 1992). Meanwhile, the stamping out strategy is increasingly being questioned as a method to control animal diseases. Not only animal welfare concerns but also the unnecessary waste of food, environmental reasons and massive personal and emotional consequences for animal owners and other people involved represent major drawbacks (Mejdell et al., 2009). In order to stop at least the unnecessary suffering and to reduce the unnecessary killing of healthy animals (around infected farms) some thoughts shall be put up for discussion.

  1. Every country should own state-of-the-art technology for humane killing of infected herds and flocks. Like fire drills, regular emergency drills with this equipment should be performed. A key priority is to prepare robust contingency plans which have political agreement and are backed up with adequate resources. These plans need to lay out the priorities for field operations, whilst balancing the need to protect human health with the requirement for effective disease control whilst maintaining animal welfare and minimising the environmental impact. (Reynolds et al., 2008; Berg, 2012)
  2. In order to ensure that the number of culled animals is reduced to a minimum without compromising the objective of stamping out the disease, the problem should be addressed that farmers, veterinarians and sometimes even authorities hesitate to report suspicious cases, because of the painful restrictions for the local community during the time until the suspicion is examined. Experts say that because of late detection much bigger epidemics must be fought than necessary (Elbers, 2011). Since the latest diagnostic technology allows for much faster information whether a farm is disease free or not, competent authorities should consider the idea to cancel restrictions for suspicious farms. The gain in time could be more helpful than the attempt to avoid risks that cannot be controlled.
  3. The greatest concerns about the new strategy based on vaccination and risk assessment are brought forward by the trading business. For them vaccination is associated only with new risks but with no opportunities, because the enormous costs of the stamping out strategy are paid by the farmers and the taxpayers – while mass-culling opens new markets. After a mass culling in South Korea in 2010, for example, because of foot and mouth disease with 3.4 million swine, cattle, caprines and cervines killed, the export value of European pork increased transiently by more than 130% up to 433 Million US-Dollar while the European export of milk and cream to South Korea even increased from 4 Million to 48 Million US-Dollar (AgE, 2011).

In thepaper three models (eclecticly assembled by the author) were applied on the question of ethically acceptable animal disease control in order to find out where today’s animal disease control is not in line with people’s moral sense and sense of justice. Some problems of utmost urgency were identified.

Reference

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Cohen, N.E., Brom, F.W.A. & E.N. Stassen (2009): Fundamental Moral Attitudes to Animals and Their Role in Judgement: An Empirical Model to Describe Fundamental Moral Attitudes to Animals and Their Role in Judgement on the Culling of Healthy Animals During an Animal Disease Epidemic. J. Agric. Environm. Ethics, 2009, 22: 341-359.

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