Lex Ferenda: Direct Extraterritoriality

Abstract

This chapter takes a critical positivist approach to exploring lex ferenda options to protect animals abroad, uncovering new applications of the passive personality principle, the universality principle, and the effects principle. Because the law of jurisdiction developed over centuries without considering animals, it does not meet the specific demands of animal law, conceptually and morally. The author offers a new application of the passive personality principle, arguing that animals should have functional nationality, like ships and corporations, that establishes a jurisdictional link to their home state. On this basis, a state can broadly and unequivocally protect its national animals abroad. The chapter next shows how the universality principle can, in the future, prohibit the most egregious crimes against animals that now escape every state’s jurisdiction (like illegal wildlife trafficking). Finally, arguments for a noneconomic version of the effects principle in animal law are explored.