The Page 99 Test: Charlotte E. Blattner's "Protecting Animals Within and Across Borders"

Charlotte E. Blattner is an international scholar specializing in animal law and ethics, animal rights, international and comparative animal law, and its intersections

with constitutional law, labor law, and human rights law. From 2018 until 2020, she will be working as a Visiting Researcher at Harvard Law School.

Blattner applied the “Page 99 Test” to her new book, Protecting Animals Within and Across Borders: Extraterritorial Jurisdiction and the Challenges of Globalization, and reported the following:

From page 99:

As in article III:4 GATT, the question of whether products are alike for the purposes of article III:2 GATT hinges on “a determination about the nature and extent of a competitive relationship between and among products.” States could prima facie introduce differentiated taxes based on the level of animal law observed during production. For example, a lasagna that contains cow meat from CAFOs, where animals are inadequately fed and raised, where they cannot behave or interact in a normal fashion, and where they are barred from forming meaningful relationships, could be taxed differently than lasagna that contains meat from “organically raised” cows. To determine if the differentiated taxes are legal, the WTO DSB must first find out if two types of lasagna are alike. To make its determination, the DSB must, in line with the Border Tax Adjustments report, examine the properties, the nature and quality (i.e., the physical characteristics) of the lasagna, the end uses of the lasagna, tastes and habits (or perceptions and behavior) of consumers, and the tariff classification of the lasagna.

As seen with the likeness test of other GATT articles, the likeness test of article III:2 GATT depends on whether PPMs affect the competitiveness or substitutability of products. On the one hand, consumers might not treat products produced with high or low welfare interchangeably, so we might find that they are not directly competitive or substitutable. On the other hand, consumer choice is highly conditional on price—i.e., consumers tend to prefer low-cost products even if they wish for better animal welfare—so the two products might represent alternative ways of satisfying consumer demand. Current consumer preferences show that the latter assumption is correct, but latent and extant demand (criteria determining how products will be treated by consumers) might change this in the future. (footnotes omitted).
Page 99 of Protecting Animals Within and Across Borders talks about the nuts and bolts of the bigger endeavor this book aims to make – which is to find ways to protect animals globalization notwithstanding. This excerpt deals with the conundrums of trade law, answering whether and how states must design laws to protect animals when they affect trade so that they do not discriminate against foreign or domestic products through internal taxes or nonfiscal measures. While appearing technical and overly WTO-law-jargonistic, page 99 exemplifies that some of the most important questions cannot and should not be answered in a wholesale manner but must first be examined in detail and in isolation, and then put together to form a complete puzzle.

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. In this environment, it has become increasingly difficult for states to gain legal certainty about whether or under what circumstances they 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.”

In other fields of law, like human rights law, criminal law, antitrust law, securities law, and environmental law, extraterritorial jurisdiction is an established legal tool to fill gaps in transboundary governance, offer perspective-taking through legal pluralism, and encourage international treaty efforts. The main claim of this book 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 book leads readers through the what, the why, and the how questions of establishing jurisdiction in the complex and eclectic context of animal law. Using the avenues of trade law, general public international law, and animal law, pieces of a vast puzzle are brought together to weave a comprehensive net of knowledge that can be used for future advocacy and legislation. The topic invites readers to engage in broader discussions about global justice, interspecies ethics, and the ever-lingering struggle between economics and welfare, but it also aims to find closure and offers ways to resolve these controversies.