2.1 Unnecessary suffering and cruelty prevention

Prominent animal ethicist Peter Singer argues that animals are sentient beings and therefore can feel pain and distress (Singer, Reference Singer1975). Consequently their welfare deserves ethical, moral and legal consideration and efforts should be made to reduce the pain and suffering they endure at the hands of humans:

As modern animal welfare laws took root in Western countries, and non-Western nation-states created their own legislation by consulting or transplanting Western concepts, animal welfare statutes globally have become dominated by the overarching theme of preventing unnecessary suffering (Mang, Reference Mang, Ping and Xueli2005). The concept has been adopted by countries, regions and organisations such as the UK, Australia, Singapore, Hong Kong SAR, the EU (Mang, Reference Mang, Ping and Xueli2005; Cao, Reference Cao2007), Germany and Sweden in the creation of relevant laws, regulations and conventions.

For example, the UK's Animal Welfare Act 2006 sets out that anyone whose action, or failure to act, caused a protected animal to suffer has committed an offence, under the condition that ‘the suffering is unnecessary’.Footnote ⁸ Whether the suffering is unnecessary is judged according to the following criteria:

Legislation surrounding Laboratory Animal welfare is particularly illustrative of the highly arbitrary and conditional nature of the concept. For instance, Germany's Animal Welfare Act 2006 states that: ‘No more animals than necessary to achieve the purpose of the experiment may be used … Pain, suffering or harm may be inflicted on the animals only in so far as unavoidable to attain the purpose of the experiment.’Footnote ¹⁰

This means that in situations where the welfare of an animal is weighed against the economic or scientific benefits to humans, the infliction of pain on the animal can be justified. In other words, in some cases animal suffering is seen as necessary. Critiquing the idea of ‘necessary suffering’, O'Sullivan (Reference O'sullivan2011, p. 41) argues that ‘the concept of necessary suffering allows for the instrumental use of animals as a means to human economic ends … [It] has the effect of permitting acts of cruelty when cruelty is economically expedient’. The definition of what suffering is justifiable, reasonable or necessary is kept ambiguous, or as Katrina Sharman (Reference Sharman and Bekoff2010, p. 359) puts it, ‘flexible’, to reflect shifting human values.

2.2 Duty of care

In recent years a legislative move has taken place globally that requires animal keepers to give animals a scientifically based ‘satisfactory standard of care’ in addition to preventing cruelty against them (Whitfort, Reference Whitfort2012, p. 348). This means that animal keepers can now be prosecuted for negligence and ignorance, which were previously not punishable under anti-cruelty laws that only prosecute those who deliberately inflict pain on animals.

Duty of care towards animals was first proposed in the Animal Welfare Act 1993 of the Australian state of Tasmania, following the discovery of 107 neglected dogs in cages in 1989 (Whitfort, Reference Whitfort2012, p. 361). Today, Germany, New Zealand, Taiwan, the UK and the US have all integrated the duty of care principle into their animal welfare statutes; Hong Kong SAR, India and Sri Lanka are contemplating similar reforms (p. 348). Amanda Whitfort (Reference Whitfort2012, p. 348) sees it as filling an important legislative void by offering protection to animals ‘that have not suffered overt cruelty but are clearly not being provided with a reasonable standard of care’. In other words, anti-cruelty laws primarily aim to prevent an animal's negative experience (i.e. unnecessary suffering), whereas duty of care provisions ensure that an animal's circumstances and experience are positive through prescribing adequate standards of care.

The adequate standards of care can be translated into the fulfilment of an animal's basic welfare needs. In 1965, the Report of the Technical Committee to Enquire into the Welfare of Animals Kept under Intensive Livestock Husbandry Systems (known as the Brambell Report) proposed minimum standards of care for farm animals in the UK in the form of the so-called Five Freedoms (Brambell, Reference Brambell1965). They are:

1. (1) Freedom from hunger and thirst;

2. (2) Freedom from discomfort;

3. (3) Freedom from pain, injury or disease;

4. (4) Freedom to express normal behaviour;

5. (5) Freedom from fear and distress.

Over the years, the animal needs contained in the Five Freedoms have found their way into animal welfare legislations globally. The UK's Animal Welfare Act 2006 requires animal keepers to ensure an animal's needs for suitable environment and diet, exhibiting normal behaviour, companionship, and protection from hostile animals, pain, suffering, injury and disease.Footnote ¹¹ Germany's Animal Welfare Act 2006, under the section on animal husbandry, for instance, similarly regulates the fulfilment of animal needs that include species-appropriate food, housing (including lighting and temperature), care, freedom of movement and need for company.Footnote ¹² It also requires any person keeping or caring for animals to possess the knowledge and skills needed to provide adequate care.Footnote ¹³ The Animal Care and Protection Act 2001 of the Australian state of Queensland emphasises that the keeper of an animal ‘owes a duty of care to it’, and needs to satisfactorily provide the animal with food and shelter, allow the animal to display normal behaviour, and give medical treatment if the animal becomes sick or injured.Footnote ¹⁴

3.1 Legislative change advocates

In 2002, Chinese bioethicist Qiu Renzong published an essay titled ‘How Are Animal Rights Possible?’ He gave a comprehensive introduction to the animal rights concept and argued for humans’ direct obligation towards animals by engaging with a range of Western and Chinese ethical, moral and religious theories. He argued that China was materially and ideologically ready to put the issue of animal rights on the agenda, and that ‘protecting the rights of non-human animals will advance human rights’ (Qiu, Reference Qiu2002). Non-human animals, he suggested, can become the direct subject of rights, and ethical theory demonstrates that humans have direct obligations to them. He proposed a ‘gradual reformist approach’ to animal welfare advocacy in China, which would involve ‘passing laws and regulations when the time is right’ (Qiu, Reference Qiu2002).

Lawyer and academic Song Wei (2006) argued that popular acceptance of the concept of animal welfare and the enactment of animal welfare legislation are complementary. On the one hand, animal welfare needs to be enforced by law, and on the other hand, enforcement would not be possible without a sufficient level of public awareness and conscience (Song, Reference Song, D'Silva and Turner2006, p. 102). He argued that China's international image would benefit from the creation of animal welfare laws, and that China already had the necessary conditions for legislative reform: ‘There is an urgent need for China to enact the relevant legislation on animal welfare, especially anti-cruelty laws, to make clear the legal status of animals’ (pp. 102, 110).

In keeping with views expressed by Qiu and Song, scholar and animal welfare advocate Mang Ping (2002) argued that ‘the time is ripe for China to legalise animal welfare’, and that the passing of an animal protection law would facilitate the ‘moral awakening’ of Chinese society. She observed that China's lack of animal protection legislation had not only put it behind countries with such laws, but had also deviated from the desires and expectations of its own people. Importantly, she rejected any suggestion that a Western animal protection legal framework would clash with Chinese conditions. Instead, she pointed out that Eastern religious and philosophical thoughts on human–animal relationship had always had a noticeable influence in the West. Therefore, ‘the principle of legalising animal welfare clearly overlaps with the ideal human–animal relationship promoted by traditional Chinese culture’ (Mang, Reference Mang2002).

Other voices of support have come, perhaps unsurprisingly, from the people who drafted China's animal protection laws. The scholar spearheading the drafting efforts, Professor Chang Jiwen, is based at the Chinese Academy of Social Sciences (CASS) – a research body that serves as a think-tank for China's State Council. He argued that legalising animal protection was conducive to maintaining social order, as the failure to curb animal abuse in recent years had generated considerable public discontent (Chang, Reference Chang, Chang, Michaels, Littlefair and Li2010b). He cited the results of two online surveys conducted in June 2009 by two of China's biggest online portals which showed that over 80 per cent of people supported the introduction of animal protection legislations, and more than 75 per cent supported the investigation of criminal liability for animal abuse resulting in death (p. 250). Like Song, he argued that, as animal abuses were frequently reported by local and foreign media, China's international image had been irreparably tarnished. Moreover, in economic terms, China's export of animal products has been severely affected by an inability to meet the farm animal welfare standards of many developed countries. Legalising animal protection, Chang (Reference Chang, Chang, Michaels, Littlefair and Li2010b) concluded, would therefore restore China's international reputation and improve its trade prospects. Finally, he argued that the management of animals could be enhanced through setting legal requirements for owner responsibility and disease prevention, which could relieve the government's financial burden and safeguard public health.

3.2 Legislative change opponents

One of China's most vocal opponents of animal welfare is Professor Zhao Nanyuan of Tsinghua University. He produced a direct rebuttal of Qiu Renzong's essay titled ‘Anti-Humanity Is the Major Weakness of the Animal Rights Concept’, in which he labelled Qiu's theoretical discussions of animal rights as ‘a shipload of foreign trash’, and criticised pro-animal academics’ call for policy change as ‘an imposition of their own views on others by legal means’ (Zhao, Reference Zhao2002). Animal rights advocacy, he argued, demonstrates that ethics can coerce people into ideological submission and lead them astray. Shortly after the draft of the first-proposed Animal Protection Law of the PRC was released in 2009, he launched a vicious attack on Chang Jiwen, describing Chang's views as ‘filled with lies and preposterous arguments’ (Zhao, Reference Zhao2009). He demonstrated this by saying that in a ‘normal value system’, slaughter is a bigger crime than cruelty, and humans are superior to animals, but animal rights have promoted the contrary. He asserted that ethics only applies to human relationships and an ethical claim is only valid as far as it advances long-term human interest.

Zhao (Reference Zhao2002) also denied that animals are sentient, stating that consequently they cannot become the subjects of rights. From a social contract perspective, he argued, animals do not have any responsibilities – therefore they do not deserve corresponding rights. Furthermore, he labelled the animal rights movement as a new ideological weapon of neo-imperialism that imposes Western-centric values on other societies, and saw pro-animal Chinese scholars and activists as accomplices that lack independent judgment and blindly follow Western ideologies (Zhao, Reference Zhao2002; Zhao cited in Wang, Reference Wang2004). Introducing animal welfare concepts into China, he claimed, could potentially create ‘cultural conflict’ as Western cultures are ‘metaphysical and monistic’, while Eastern cultures are ‘physical and pluralistic’ (Zhao cited in Wang, Reference Wang2004).

Dovetailing with Zhao's scrutiny of ethical intervention, lawyer Shen Bin (2009) argued that, with the release of the draft laws, animal rights activists had attempted to establish ‘politically correct’ (moral) standards in the public sphere in order to obtain discourse hegemony. He called for a more comprehensive and objective understanding of legalising animal protection through the exposure to the public, or the ‘silent mass’ as he called them, of some ‘facts’ that ‘radical animal rights activists’ and the mainstream media failed to mention (Shen, Reference Shen2009). These ‘facts’ include his denial of any link between animal abuse and violence towards humans; Nazi Germany's eco-fascism practices; and his criticism of animal lovers in China for violating human rights through, according to him, verbally and physically clashing with animal abusers during animal rescues. The significance of animal protection legislation, he argues, should not be amplified so much as to affect the consideration of human interests.

Another critic of pro-animal legislation, Qiao Xinsheng, also focused on cultural differences, but gave a more reasoned and subtle critique. He claimed that, unlike Western countries, China did not have the same environment in which animal welfare laws could exist (Qiao, Reference Qiao2004). As a result, Chinese pro-animal rights scholars and activists had simply ‘transplanted western animal welfare standards into China’, which were neither suited to Chinese traditional values nor economically viable (Qiao, Reference Qiao2004). He reached the following conclusions: (1) at the current stage of development, it is impossible for animal welfare laws developed in advanced economies to be implemented in rural China; (2) most Chinese would find giving animals equal consideration unacceptable; and (3) Chinese people would be willing to improve the living conditions for animals through a more localised approach. The current Western animal welfare legal framework, he asserted, has chauvinistic tendencies and may obscure the line between the subject and object of rights. Consequently, he defended China's current animal-related legal framework, asserting that ‘it embodies Chinese traditions and values, reflects China's level of development, and is highly enforceable’ (Qiao, Reference Qiao2004).

5.1 Economic Animals

The draft laws define an Economic Animal as ‘an animal reared or possessed for the purpose of providing draught power or for producing food, feathers, hair, leather, fur or raw materials for medicines’.Footnote ¹⁷ The protective framework for Economic Animals in the APL is guided by overt economic and public health incentives:

The APL has prescribed a fairly comprehensive duty of care for Economic Animals. Article 54 specifies requirements for the keeping of animals to ensure that those with animals under their control have the knowledge and skills needed to provide appropriate care. Further, it contains detailed requirements for meeting the behavioural, physiological and psychological needs of animals in large-scale intensive farming:

1. (i) in a manner suited to the requirements of the animal's species, stage of growth, degree of adaptation, and degree of domestication, the animal should be provided with a living environment, food, water and care which are appropriate to its basic physical and physiological needs; the living environment should be able to withstand adverse weather, natural enemies and other hazards to the animal's health;

2. (ii) ensuring the freedom of activity consistent with the particular features of the species, an economic animal may not have its freedom of activity restricted in such a manner as to cause unnecessary suffering or harm;

3. (iii) the light, temperature, humidity, air circulation, ventilation, levels of concentration of toxic gases, noise and other environmental conditions in an economic animal's resting area should be provided in a manner suited to the requirement of the animal's species, stage of growth, degree of adaptation and degree of domestication …Footnote ²⁰

The companionship needs of, and the lighting, keeper inspection and veterinary care requirements for Economic Animals have been addressed as well.Footnote ²¹ In addition to promoting a duty of care, such clauses are reminiscent of the necessary suffering principle. The underlying assumption is that the economic use of animals, for the benefit of humans, is absolutely acceptable, but, in extracting profit from animals, the law should protect against excessive suffering and provide minimally suitable environmental conditions.

Comparatively, the regulatory protection given by the PCAL to Economic Animals is almost solely focused on preventing unnecessary suffering. Economic Animals may not be driven or used in such a manner as to cause them unnecessary harm or suffering, and those who own or keep Economic Animals are ‘prohibited from abandoning in the wild those animals whose abandonment is improper or inappropriate’.Footnote ²² The requirements set out here are highly limited and generalised. They give no consideration to the physical and psychological needs of Economic Animals and fail to regulate negligence.

Both laws also provide for humane transport and slaughter, and highlight the prevention of unnecessary suffering during these processes. In regulating slaughter, for example, animals are required to be restrained in a manner that would not cause them avoidable pain and suffering, and be humanely stunned and bled rapidly, cleanly and thoroughly without being seen by other animals awaiting slaughter.Footnote ²³ Overall, the APL again offers more substantive protection than the PCAL. For instance, to tackle the issue that a large number of China's farm animals are slaughtered inhumanely in illegal private abattoirs, the APL has designated places of slaughter and set detailed requirements; it also requires the persons engaged in animal slaughter to be qualified and experienced, which reinforces the duty of care.Footnote ²⁴ These requirements are not found in the PCAL.

Despite growing public support for a ban on the consumption of dogs and cats in China, the issue remains highly contentious, as attested by the clashes between supporters of the dog/cat meat trade and animal lovers and activists in online debates and offline animal rescues. In view of this, Article 162 of the APL (Article 25 of the PCAL) can be said to be particularly progressive: ‘Based on local ethnic and cultural customs, People's Governments at the provincial level may prohibit the slaughter of dogs and cats and the transport and sale of cat and dog products in their jurisdiction.’ Although this does not completely ban the killing of non-domestic dogs and cats, it does leave room for public opinion to pressure local authorities to outlaw the practice.

5.2 Pet Animals

Although Pet Animals have the second highest number of articles relating to them, the quality of statutory protection they are afforded is far from adequate. The regulatory framework for Pet Animals in the APL largely serves the purpose of restricting and regulating pet ownership, as opposed to ensuring the well-being of pets. Out of the twenty-five articles contained in Chapter 5 of the APL (‘Legal Protection for Pet Animals’), only eleven address welfare and protection (including three articles that exclusively focus on stray animals). The regulatory framework for Pet Animals is clearly dominated by a heightened concern for public health and human safety. Article 64 of the APL sets the tone for Pet Animal protection legislation:

Local governments also have the power to designate areas where cats and dogs cannot be kept or exercised;Footnote ²⁵ aggressive or large dogs are forbidden in the so-called ‘key management areas’Footnote ²⁶ – i.e. cities and densely populated residential areas; people wishing to keep a dog or cat need to submit an application;Footnote ²⁷ and in their outdoor exercise, ‘dogs should be prevented from barking, and cats and dogs from behaving aggressively’.Footnote ²⁸ These regulations bring to mind the controversial ‘One Dog Policy’ and the frequent crackdowns on large breeds of dogs in China in recent years, which have outraged many dog owners (see Makinen, Reference Makinen2013).

A notable feature of the APL and PCAL is that almost all the protection is aimed at cats and dogs, excluding other animals that might also be considered pets. The APL defines pets as ‘any domesticated or tame animal, including cats, dogs, birds, horses, parrots or other species, which is possessed or intended to be possessed, for the purposes of personal recreation or companionship’.Footnote ²⁹ However, the rest of its articles make no mention of animals other than cats and dogs. This species discrimination could be due to the fact that ownership of other animals as pets is still uncommon in China, although gaining popularity. Or the reason might be that the drafting committee simply considered cats and dogs to be more popular and visible, meaning that they are thought to represent all animals in this category.

Despite its overwhelming emphasis on Pet Animal management and regulation, the APL does attempt to promote a duty of care. This is evident in its Article 79, which requires that ‘those who own, keep and care for Pet Animals should as far as is appropriate observe their duties to their pets’, including having them immunised and neutered, and providing care and treatment when necessary. Individuals or organisations with a past record of abandonment of or cruelty to animals are not allowed to apply for pet registration.Footnote ³⁰ The APL also requires cat and dog breeders to be experienced in caring for animals, and pet animal breeding businesses to meet the same conditions as farms that keep Economic Animals.Footnote ³¹ Another duty of care clause is contained in Article 143, which deals with the transport of domestic cats and dogs: the person caring for an animal is asked to complete an ‘animal care form detailing the food and drinking water provision and other content’ and to ‘provide drinking water at intervals no greater than 12 hours, and food at intervals no greater than 24 hours’. Overall, however, the positive welfare requirements set out by the APL for Pet Animals remain insufficient if compared to its duty of care provisions for Economic Animals. For instance, the behavioural and psychological needs of pets are not considered.

Compared to the APL, the PCAL has dramatically diluted the protections afforded Pet Animals. Despite its purpose as an anti-cruelty statute, the PCAL contains no articles on preventing unnecessary suffering in domestic pets, nor does it establish any duty of care protocols. It is largely focused on preventing abandonment and formalising the management of stray cats and dogs in terms of group care, rescue, detention, and quarantine and shelter procedures. This renders the PCAL powerless in preventing and prosecuting the neglect of and cruelty against Pet Animals.

Notably, the PCAL requires the state to ‘establish systems of designated places for the breeding and sale of cats and dogs and of identification and registration, in order to prevent cruelty towards and abandonment of, or unlawful use as economic animals of dogs and cats’.Footnote ³² These provisions are important, considering that many cats and dogs being transported across China to be slaughtered for food are poisoned or stolen pets/strays. This has been well documented by a journalistic investigation of animal welfare in China:

Possibly in an attempt to draw a line between Economic Animals and Pet Animals where slaughter and cruelty is concerned, the APL clarifies the definition of Pet Animals: ‘Once an individual animal that is not prohibited by law from being reared as a pet has been reared as a pet, then it shall be considered a pet animal for its entire life.’Footnote ³³ This protects stray companion animals from being slaughtered and could work if an effective pet identification system is put in place (e.g. microchip). However, this clarification cannot be found in the PCAL. The laws also state that the stealing of stray cats and dogs under community care constitutes theft,Footnote ³⁴ and the offender will face disciplinary action or even bear criminal responsibility depending on the severity of the offence.Footnote ³⁵ If the PCAL is eventually adopted, this stipulation would afford China's large number of stray animals a much-needed layer of protection.

5.3 Other Animals

Other Animals include Exhibited Animals, Circus Animals, Sport Animals, animals used in media production and animals used for special work (e.g. police and customs dogs, rescue dogs, etc.).Footnote ³⁶ Under the APL, the duty of care principle is well integrated into the statutory protection of Other Animals. Article 103 requires that ‘animal exhibits, performances or particular work should take as a guiding principle that the animals’ lives should be respected and their basic physiological and psychological needs should be met’. The articles that followed give elaborated requirements on humanely treating animals and prohibiting abandonment and cruelty. People who keep and care for the animals are required to demonstrate relevant knowledge and professional skills, maintain animal care records, closely monitor the physiological and psychological conditions of the animals, and refrain from engaging pregnant, sick or injured animals in sport, competition or other work.Footnote ³⁷ The APL sets out highly detailed welfare and anti-cruelty provisions based on the needs of and issues relevant to all subcategories of Other Animals. The protective framework for Other Animals in the PCAL, on the other hand, is once again centred on preventing unnecessary suffering or harm without the inclusion of the duty of care requirements.

5.4 Laboratory Animals

The basic policy put forward in the APL for Laboratory Animals seeks to strike a balance between scientific research needs, social development and animal welfare.Footnote ³⁸ Resembling Western animal welfare statutes in their approach to legalising Laboratory Animal welfare, the APL and PCAL have prioritised the concepts of pain minimisation and the prevention of unnecessary suffering. Underpinning these priorities is the aforementioned internationally recognised 3Rs of humane animal experimentation, which have been well integrated into the statutory protection set out in both laws:

While the PCAL's protection of Laboratory Animals largely centres on these two priorities, the APL has again proposed a more elaborated protective framework. It includes setting ethical standards in animal experimentation through the establishment of national and provincial laboratory animal ethics committees designated to release ethical guidelines and supervise animal experiments.Footnote ⁴⁰ People whose work involves the use of Laboratory Animals need to apply for permits from provincial science and technology administrative departments, and conversely, only animals that have been approved by the departments as conforming to standardsFootnote ⁴¹ can be used in experiments.Footnote ⁴² Importantly, the APL regulates the housing and care of Laboratory Animals in great detail: the volume of space, housing layout, equipment and facilities in the animals’ living environment should conform to set standards; animals need to be provided with clean water and nutritious food at appropriate frequencies; their living conditions and health need to be closely and frequently monitored; and complete veterinary care must be given to sick animals.Footnote ⁴³

5.5 Wild Animals

China's existing Wildlife Protection Law 1988 defines Wild Animals as ‘the species of terrestrial and aquatic wildlife which are rare or near extinction and the species of terrestrial wildlife which are beneficial or of important economic or scientific value’.Footnote ⁴⁴ In view of this, major progress made by the APL and PCAL is the redefinition of Wild Animal as ‘non-domesticated animal of any species which exists under natural conditions’ as well as ‘wild animals and their subsequent generations which have been domesticated or trained by humans’.Footnote ⁴⁵ The latter affords extra protection to those Exhibited Animals who have been removed from the wild or are descendants of Wild Animals.

In 2002, a university student named Liu Haiyang attacked five bears on display in the Beijing Zoo with caustic soda and sulphuric acid, causing severe burns and deaths (see Whitfort, Reference Whitfort2012). Since the bears he attacked were neither living in the wild nor ‘endangered’, the Wildlife Protection Law 1988 could not be applied to prosecute him, and he was charged with damaging state property but later acquitted of any criminal penalty (Whitfort, Reference Whitfort2012, pp. 350–351). The redefinition of Wild Animal in the APL and PCAL hence has significant implications for the protection of Wild Animals in China: if the PCAL is eventually adopted, Wild Animals that are not endangered or considered valuable to humans, and (qualified) captive wild animals and their offspring in zoos and wildlife parks, may also enjoy the legal status of wildlife and be afforded equal protection. In addition, in recent years zoos in China have been frequently exposed for mismanaging and maltreating animals in their care (see Wang, Reference Wang2014), which has often been blamed on financial stress (Whitfort, Reference Whitfort2012; Yang and Jin, Reference Yang and Jin2015). Addressing this issue, the draft laws specifically require zoos and wildlife parks that are starving animals or subjecting them to pain or disease due to management difficulties to report to relevant government departments, who can take over the establishments if necessary.Footnote ⁴⁶

To protect free-living wildlife, both laws require the methods and equipment for the capture, hunting or killing of animals to conform to humane standards.Footnote ⁴⁷ Contained in the APL but removed in the PCAL are stipulations concerning the keeping of wildlife breeding records, the prohibition of commercial consumption of free-living state-protected wildlife, the conditional consumption of domesticated state-protected wildlife, and the release of animals into the wild.Footnote ⁴⁸ Importantly, the APL has designated the forestry administrative department under the State Council to set the ‘living space, temperature, drinking water, feed and other protection standards and requirements’ for Wild Animals.Footnote ⁴⁹ This duty of care clause is missing in the PCAL. Overall, in the protection of both free-living and captive Wild Animals, the PCAL is once again weaker than the APL in almost all aspects.

6.1 The spirit of compromise

Although China has a socialist political system, similar conditions can be found that underlie the emergence of the draft laws and the passing of animal protection and anti-cruelty statutes in some Western countries. Civil activism in China has always been linked to the influence of elites and urbanites who have used their personal, political and social connections to advance particular causes such as environmental advocacy (Sima, Reference Sima2011, p. 484). Animal rights activism is no exception. This can be demonstrated by the fact that the drafting of the laws was spearheaded by an academic from the government-affiliated CASS and carried out by Chinese and foreign legal scholars and experts. The voices of an expanding Chinese middle-class population calling for the legal protection of animals also mirrors the intensity of sympathetic public opinion towards animals in many Western countries before their first animal welfare law was enacted. The fast increase in the number of grassroots animal protection/rescue groups and NGOs in China also created favourable conditions for legislative change. The number of animal protection groups in China increased from 20 to 130 between 2002 and 2011 (Balaram and Su, Reference Balaram and Su2011), and since many activist groups operate in China without proper registration due to the complexity of registration procedures (Sima, Reference Sima2011, p. 480), the actual number is likely to be much higher. These developments are strikingly similar to those which facilitated the creation of modern animal protection statutes in the West. For instance, almost 200 years ago, Martin's Act was proposed by Sir Richard Martin MP, a member of the then British political elite, in the context of growing public support for the humane treatment of animals (O'Sullivan, 2011). Public pressure, elite influence and the emergence of animal protection groups also heralded the creation of animal protection or anti-cruelty laws in many other countries, including France, Germany and the US (Mang, Reference Mang, Ping and Xueli2005).

As discussed at length, duty of care requirements set out in the APL are largely missing in the PCAL. This is perhaps not surprising considering the change from ‘animal protection’ to ‘prevention of cruelty’ in the title and focus of the draft laws. Notably, this has deviated from the aforementioned international legislative trend, which has shifted to address positive welfare in addition to criminalising cruelty. While it has been argued that China cannot effectively protect its animals without the inclusion of a statutory duty of care in its animal protection law (Whitfort, Reference Whitfort2012), members of the law's drafting committee have defended their decision to remove welfare provisions from the PCAL in consideration of China's current circumstances (see, for example, Littlefair, Reference Littlefair, Chang, Michaels, Littlefair and Li2010).

In fact, the watering-down of the draft law illustrates that China's animal protection law-making is working through the same trajectory that has been observed elsewhere. Anti-cruelty legislation has tended to be the first step in the creation of animal welfare laws. Take the UK, for example: the full name of its first animal protection law, Martin's Act, was the Act to Prevent the Cruel and Improper Treatment of Cattle. As the name suggests, the biggest achievement of the act was criminalising cruel treatment of cattle (O'Sullivan, 2011). It stated that a penalty would result ‘if any person or persons shall wantonly and cruelly abuse or ill-treat any Horse, Mare, Gelding, Mule, Ass, Ox, Cow, Heifer, Steer, Sheep or other Cattle’.Footnote ⁵⁰ This shows that, at the beginning, anti-cruelty was the legislative priority and the law was imperfect in many aspects by today's standards (e.g. the exclusion of other categories of animals). The Act was repealed by the Cruelty to Animals Act (1835, 1849, 1876), which retained the anti-cruelty focus. This focus was replaced by comprehensive protection in 1911 when the Protection of Animals Act was passed in the UK. In addition to extending anti-cruelty regulations, the Protection of Animals Act also introduced the concept of unnecessary suffering. In 2006, the Animal Welfare Act was passed, which advanced the welfare of animals by adding the duty of care principle and criminalising negligence.

Indeed, the two-steps-forward, one-step-back process of establishing an animal welfare legal framework in China is very reminiscent of the UK's experience. No fewer than four attempts were made to create an animal welfare law in the UK before Richard Martin's Act was finally introduced in 1822 (O'Sullivan, 2011, p. 147). It too was born of political compromise and very much weaker than Martin had hoped for. Merely two pages in length, it included only some of the provisions Martin had originally foreshadowed (O'Sullivan, 2011, p. 148).

6.2 Theoretical underpinnings

As our analysis shows, the two draft Chinese laws are based largely on Western legal frameworks. They have absorbed the earlier-analysed Western animal welfare philosophies of unnecessary suffering and duty of care to different extents. The APL defines animal protection as ‘any conditions or measures provided which benefit an animal's normal growth, reproduction, veterinary treatment, rescue etc., and conditions or measures which avoid causing unnecessary pain and harm to animals’,Footnote ⁵¹ reflecting both one's duty to care for animals as well as the prevention of unnecessary suffering. The legalisation of duty of care in the APL is particularly evident in the protection of Economic and Laboratory Animals, which has extended consideration to their physiological and psychological needs. Further, the prevention of unnecessary suffering has been identified as a guiding principle in both laws. According to Chang (Reference Chang, Chang, Michaels, Littlefair and Li2010a, p. 251), in writing the PCAL, the drafting committee consulted the legislative experiences of the EU, the US, Australia, Canada, India, Hong Kong SAR and Taiwan.

Additionally, the draft laws have allocated protection based on different animal categories and management processes (Chang, Reference Chang, Chang, Michaels, Littlefair and Li2010e, p. 167). Apart from one chapter in the APL that regulates transport, which indeed sets different protection standards for animals of various species, the protection outlined elsewhere in the draft laws is overwhelmingly category-driven. The categorisation of animals in this way is arbitrary and based on the uses humans make of animals, rather than more scientific categorisation, such as species groups, for example. In other words, as in the West, human preference for some animals over other animals, based either on popularity or a desire to extract profit from them, informs the level of protection received by different types of animals under the proposed Chinese laws. This species discrimination has attracted criticisms in relation to current Western animal protection statutes. Joan Schaffner (Reference Schaffner2011) argues that current Western animal welfare legislation is both speciesist and anthropocentric. In other words, they are ‘biased, or negatively discriminatory, against certain types of animals in specific contexts’ (O'Sullivan, 2011, p. 36). It appears that a similar speciesist legal framework has been incorporated into the Chinese draft laws. For example, a dog identified as an Economic Animal can be slaughtered for food, while one identified as a pet cannot.

6.3 A weakened understanding of cruelty

Yet while much of the Chinese legislation is familiar from a Western perspective, this is not the full story. Some aspects of the draft laws appear to be markedly Chinese, and therefore unlike provisions typically found in the West. For example, most of the legal requirements are general and sketchy, and do not prescribe enforceable minimum standards. Although this can also be said of some Western statutes, they tend to have accompanying codes of practice and/or regulations that provide detailed standards and requirements. These codes and regulations are almost non-existent in China.

Most strikingly, the PCAL's definition of cruelty is somewhat at odds with a typical Western definition. The APL initially included ‘deliberate action’ and ‘serious negligence’ (zhongda shuhu) as the bases for defining cruelty.Footnote ⁵² Chang (Reference Chang, Chang, Michaels, Littlefair and Li2010h, p. 56) stated that ‘the harm inflicted on an animal as a result of average negligence does not constitute cruelty, because everyone can be negligent sometimes’, arguing that this cruelty definition better reflects China's current conditions. Arguably, using ‘serious negligence’ as a benchmark for determining cruelty is problematic, since the line between ‘serious’ and ‘average’ negligence is open to subjective interpretation. However, even the phrase ‘serious negligence’ was removed in the PCAL, which reduced the definition of cruelty to ‘the deliberate use of brutal means or methods to cause unnecessary suffering or harm to an animal, or the use of brutal means or methods to kill an animal’.Footnote ⁵³ This suggests that, under the PCAL, negligence and unintentional actions that cause unnecessary animal suffering or even death do not count as cruelty.

Commenting on this weakened definition of cruelty, Michael Radford (Reference Radford, Chang, Michaels, Littlefair and Li2010, p. 314) points out that, in many countries, the majority of animal abuse is not caused by intentional violence but neglect, therefore deliberate intent should not be the only basis for defining cruelty. He argues that different actions can be taken, based on the severity and frequency of neglect: the toughest penalties only apply to the worst cases of offence; in cases of potential cruelty caused by neglect, a formal notice is issued that requires animal keepers to immediately amend their conduct (p. 315). This arrangement is less likely to cause overpunishment and as a result seems to be better suited to China's current conditions. The PCAL's current clear-cut, undifferentiated definition of cruelty does not provide the best solution to preventing animal abuse, and contradicts the unnecessary suffering concept upon which it is premised.

6.4 Other distinctive Chinese features

Another evident difference between the Chinese laws and existing Western statutes lies in the lack of protection allocated to Pet Animals. As argued, under the proposed Chinese laws, greater weight has been given to regulating pet-keeping and preventing harm to other animals and humans than protecting Pet Animals from harm. This constitutes management rather than protection. Dangerous dog laws and breed bans can be found elsewhere. For instance, in the US many states have enacted such laws. A significant difference between China and other countries, however, is that the statutory protection given to Pet Animals in the Chinese draft laws has been overwhelmed by animal controls. This could partially be due to the rampancy of rabies in China, which has posed a serious public health threat.

O'Sullivan (2011) found that in many Western countries such as Australia, Pet Animals, being the most visible category of animal, are some of the most effectively protected animals before the law. Our analysis suggests that the Chinese draft laws have afforded the highest level of protection to Economic Animals. This might be attributed to the sheer number of farm animals in China, their relatively low visibility, and hence the need for greater protection, and the fact that China's exports of meat and other animal products have long been affected by non-compliance with international farm animal welfare standards. Therefore, an improvement in the welfare of Economic Animals that meets existing international legislative standards will benefit China in its trade activity.

Other differences between China and the West can also be found. First, regulations pertaining to hoarding are missing from both Chinese draft laws, probably due to the fact that it is not currently a common problem in China. Second, both draft laws have regulated the care and management of stray animals at length. This should be commended considering the large presence of strays in China and the resulting health and welfare problems. The humane destruction (rendao huimie) of abandoned or ownerless animals who cannot be rehomed, which is often regulated by Western animal protection statutes, has been replaced with ‘humane management’ (rendao chuli) in the Chinese draft laws.Footnote ⁵⁴ According to Chang (Reference Chang, Chang, Michaels, Littlefair and Li2010h, p. 59), this progressive provision is based on compassionate grounds and requires animal shelters and rescue establishments to keep providing for abandoned and ownerless animals who have not been adopted, given that the organisations have the resources, and that the animals are healthy.

Finally, although the draft laws have banned the killing and consumption of dogs and cats of the Pet Animal category, they have allowed the consumption of cats and dogs if they are bred as Economic Animals. Perhaps this is a compromise that had to be made in order to have the law considered and passed. As testament to this, China's state-run newspaper, People's Daily, which is known to officially represent government positions, published an editorial in June 2014 as conflict erupted (once again) between people who support the consumption of dog meat and animal-loving activists at the infamous Yulin Dog Meat Festival. The editorial stated that ‘in reality, dogs can be companion animals as well as food’, and called on both sides to exercise constraint and tolerance, while also arguing against the abuse, stealing and public slaughter of dogs (Wu, Reference Wu2014). This shows that the government has taken a cautious and neutral stance on the issue so as not to inflame either side, and to prevent the confrontation from escalating into a social crisis. It is unlikely that the consumption of dogs and cats can be completely banned in China at this stage. That being said, dog-eating is only common in some parts of the country and is considered a culinary tradition by a minority of the Chinese population. Many Chinese, especially those living in big cities like Beijing and Shanghai, do not see it as an acceptable practice. Therefore, if the PCAL is eventually enacted, it can potentially have the practice outlawed in some parts of China first.