Responsible Regulation of the Religious Slaughter of Animals

One of the more intractable issues associated with animal law and ethics concerns responsibly regulating the slaughter of animals according to the requirements of the Jewish religious tradition and some interpretations of the Islamic religious tradition.  Most Western liberal democratic societies require animals to be stunned before slaughter to ensure they are insensible when killed.  However, the Jewish tradition and many interpretations of the Islamic tradition prohibit pre-slaughter stunning.  In these traditions, animals are killed according to specific religious rituals that involve cutting the animal’s throat and permitting it to exsanguinate without prior stunning.  These requirements therefore come into direct conflict with Statutes, Codes and Regulations of many Western countries intending to give expression to animal welfare policies by requiring pre-slaughter stunning.  However, such practices are also protected by international and domestic human rights instruments guaranteeing freedom of religious practice and expression.  Recent decisions of European Courts demonstrate the difficulties that arise when countries attempt to regulate this conflict.  In exploring several of these recent decisions, this article intends to outline the parameters of this conflict and to suggest a potential way forward to responsible regulation of such practices.


Introduction
Humans have never regarded food in merely utilitarian terms; as simply a resource for the body's production of necessary energy. Since the earliest civilizations, humans have invested food, its preparation and sharing with others in the form of communal meals, with both religious and social significance. Easily recognisable examples include the Jewish Seder Meal celebrated in remembrance of Passover, and the early Christian Agape Feast and Eucharistic celebration. In contemporary times, food-choices reflect both lifestyle and ethical preferences and are thus "linked with expressions of cultural identity." 1 In this context, food practices enable individual, religious and cultural groups to both define and reinforce their sense of identity and belonging. 2 This is especially so where religious traditions prescribe specific practices or techniques relating to the preparation and consumption of certain foods. But what happens if those specific foods practices or techniques come into conflict with secular values held by wider society? How do secular western liberal democratic countries attempt to responsibly negotiate simultaneous commitments to religious and cultural diversity on the one hand, and to secular values potentially inconsistent with religious or cultural food practices on the other?

The Issues in Context
Each year, since the start of the 21 st Century, over 100 billion animals, including 50 billion chickens, have been slaughtered to provide food for humans. 3 It has been estimated that "99% of all domesticates are commodities in animal agricultural" that are killed and transformed into food products for humans. 4 These numbers are expected to dramatically increase over the next three decades as the world's population also dramatically increases. One of the drivers of this demand is a growing middle-class within developing countries whose diet is changing to include more animal-based products including meat, eggs and milk. By 2020, it is estimated that inhabitants in developing countries will consume 107 million metric tons (mmt) more meat and 177 mmt more milk than they did in the period 1996 -1998. 5 Another factor driving increased demand for meat products is the growth of Muslim populations world-wide. The Muslim population is expected to rise by approximately 35% from 1 billion in 2010 to approximately 2.2 billion by 2030 thereby making up around 36.4% of the world's population. 6 The worldwide growth in Muslim population has generated global demand for Halal meat products and a corresponding increase in both live-animal and chilled meat exports from non-Muslim countries to meet this demand. 7 It is estimated that the current global market for Halal meat is worth approximately USD$77 billion annually 8 . Both India and Australia, non-Muslim countries, export significant quantities of live animals and meat prepared according to Halal guidelines to Muslim countries, especially in the Middle East and Asia.
Most Western liberal democratic societies have enacted Statutes, Codes or Regulations concerning the locations and methods by which animals are slaughtered for food. In the European Union, Art. 4(1) of Council Regulation (EC) 1099/2009 provides that prior to slaughter, animals must be rendered unconscious through an approved method of stunning. The intention of Art.4(1) is to ensure that the animal is unconscious and therefore insensible to any pain during the slaughter process. However, in order to produce Halal and Kosher meat, ritual slaughter in the Jewish and some Islamic traditions is performed without the animals being stunned into insensibility prior to slaughter. In both traditions, ritual slaughter involves a specially trained operator using a very sharp knife to cut the animal's throat permitting the animal to exsanguinate (bleed out). 9 Shechita is the term given to the Jewish religious practice of slaughtering animals and poultry in a manner that renders their meat ritually fit for consumption. The slaughter process involves a trained worker (called a "shochet") using a very sharp knife to cut the trachea, oesophagus, carotid arteries and jugular vein of an un-stunned, fully conscious animal that is then exsanguinated, or bled to death. Shechita UK,'s May 2009 publication A Guide to Shechita states that; "the time-hallowed practice of shechita, (is) marked by compassion and consideration for the welfare of the animal". 10 According to Shechita UK, the cutting of an animal's throat; "…causes an instant drop in blood pressure in the brain and immediately results in the irreversible cessation of consciousness. Thus, shechita renders the animal insensible to pain " . 11 Likewise, the Islamic tradition maintains that its processes of ritual slaughter producing Halal meat are "foundationally important for halal consumers and therefore all spiritual aspects must be met including animal welfare standards of the meat production." 12 However, if these claims are correct, why does the un-stunned ritual slaughter of animals generate such heated debate? At least one answer to that question involves the accuracy of claims that un-stunned slaughter does not cause animals greater pain than pre-slaughter stunning. Does un-stunned slaughter involve a greater degree of pain? And if so, is there a fundamental inconsistency between aspiration and practice?

Debating Inconsistency
At the heart of Art. 4(1) of Council Regulation (EC) 1099/2009 and associated European Union Instruments such as the Protocol 33 to the Treaty Establishing the European Union is the welfare of animals, particularly at the point of slaughter. It has been argued that un-stunned ritual slaughter causes animals to experience greater pain than if those animals had been stunned. However, both the Islamic and Jewish traditions insist on compassion being shown to animals and maintain that methods of un stunned slaughter are consistent with animal welfare. 13 In fact, recent scientific studies suggest that un-stunned ritual slaughter does cause significant animal welfare problems including stress and pain. In 2002, the Federation of Veterinarians of Europe ("FVE") reviewed the scientific literature concerning un-stunned slaughter, concluding that the practice of slaughtering animals without prior stunning is unacceptable under any circumstances. The FVE, noted that slaughter without stunning increases the time to loss of consciousness, sometimes up to several minutes and that during this period of consciousness the animal can be exposed to pain and suffering. 14 These findings were confirmed by a Report in 2009 in Australia and New Zealand. Investigators from Monash University, the University of Melbourne, the Victorian Department of Primary Industries and Massey University in New Zealand concluded: "taken together the conclusions above indicate that because the slaughter of sheep by ventral-neck cutting without prior stunning is likely to cause pain, slaughter of sheep without stunning poses a risk to animal welfare in the period between the time of the neck cut and the time of loss of awareness." 15 Award winning co-author of the Report, Associate Professor Craig Johnson concluded that the research "is the best evidence yet that it is painful." 16 More recent scientific studies confirm the Report's results. For example, a 2009 New Zealand study concluded that there was a period following slaughter where the neck incision represented a "noxious stimulus"; that is, a pain-causing event. 17 Likewise, a 2010 Royal Veterinary College study demonstrated the agonies suffered by animals whose throats had been cut without stunning for halal meat production. 18 Despite these inconsistent positions about the nature and extent of pain suffered by un-stunned animals at the point of slaughter, "the deeper issue that must be confronted arises from the fact that even when best commercial practices are followed, enormous numbers of animals experience pain or distress in the final period of their life regardless of whether they are killed by halal, kosher or secular methods of slaughter." 19

An Inconsistency Protected
Despite inconsistent views on the issue of suffering, the practice of religious ritual slaughter of animals is protected in most Western countries. Article 9 of the European Convention of Human Rights ("ECHR"), Article 10 of the European Charter of Fundamental Rights and Article 18 of the International Covenant on Civil and Political Rights specifically protect freedom of religion, conscience and belief, including the freedom to practice according to the requirements of one's religion. In Cha'are Shalom Ve Tsedek v. France, the European Court of Human Rights in 2000 noted that the practice of ritual slaughter was a manifestation of the freedom of religious practice protected by Art. 9 of the ECHR. 20 The primacy of Art. 9 over domestic legislation was affirmed in 2014 by the Constitutional Tribunal of Poland in Judgement K52/13. In a sharply divided decision, the Court ruled that a provision of the Polish Animal Protection Act 1997 prohibiting certain forms of religious slaughter of animal was contrary to those provisions of the Polish Constitution enshrining Art. 9 of the ECHR. 21 Nevertheless, not all restrictions or limitation imposed upon the practice of the religious slaughter of animals offends Human Rights Instruments. In 2018, the Court of Justice of the European Union (Grand Chamber) in Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen VZW held that confining religious slaughter to "approved slaughterhouses" did not restrict religious practice in contravention of Art.10 of the European Charter of Fundamental Rights or Art. 13 of the Treaty on the Functioning of the European Union. 22 In fact, the Court in the In Cha'are case held that the refusal by the French Government to permit an orthodox Jewish community to establish its own abattoirs did not contravene the protections afforded by Art. 9 of the ECHR. The Court held that since the Jewish community could import ritually pure meat from Belgium, there was no restriction on freedom of religion. 23

Consumer Rights and Labelling Initiatives
One of the little-known consequences of the religious ritual slaughter of animals in both the Jewish and Islamic traditions is the extent to which Halal and especially Kosher meat products enter the wider food distribution chain. The UK Halal Food Authority noted that while Muslims amount to approximately 3% of the UK population, Halal meat actually makes up approximately 25% of the domestic market for meat. 24 In addition, technical complexities associated with producing Kosher meat outside of Israel means that a significant quantity of meat, but particularly the hindquarters, are sold to non-kosher markets to be unintentionally purchased and eaten by non-Muslim and non-Jewish consumers. 25 To what extent can Governments regulate the religious slaughter of animals to ensure supply-chain integrity? What regulatory initiatives can Governments implement to balance the right to continue the protected practice of religious slaughter of animals on the one hand, with the growing interest of consumers in animal welfare? Can Governments introduce a labelling scheme to achieve this balance?
A survey of 13,500 consumers in the EU conducted in 2015 by the Food Chain Evaluation Consortium (FCEC) revealed that 72% of consumers would be interested in receiving information about the method of slaughter of meat products they intended to buy. 26 Clearly, non-Jewish and non-Muslim EU consumers feel they would benefit from such information. However, would a requirement imposed upon Islamic and Jewish communities to label meat products produced from ritually slaughtered animals constitute a form of discrimination in breach international Human Rights Instruments?
The issue of clearly identifying meat from animals slaughtered by halal or kosher methods was of significant concern to the European Parliament and in June 2010, the European Parliament voted on new food labelling laws. Titled On the Proposal for a Regulation of the European Parliament and of the Council on the Provision of Food Information to Consumers, ("the EU Resolution"), it contained "Amendment 205." 27 Amendment 205 required that meat and meat products derived from animals that have been ritually slaughtered, that is, slaughtered without prior stunning, must be labelled as such. The stated intention behind Amendment 205 was: "EU legislation permits animals to be slaughtered without prior stunning to provide food for certain religious communities. A proportion of this meat is not sold to Muslims or Jews but is placed on the general market and can be unwittingly purchased by consumers who do not wish to buy meat derived from animals that have not been stunned. At the same time, however, adherents of certain religions specifically seek meat from animals which have been ritually slaughtered. Accordingly, consumers should be informed that certain meat is derived from animals which have not been stunned. This will enable them to make an informed choice in accordance with their ethical concerns." What was at issue was labelling, not the ability of European Member States to prohibit the slaughter of animals for religious purposes without stunning. European Jewish and Islamic Groups initiated a wellorganised campaign against Amendment 205 alleging that it discriminated against religious practice as part of a "pan-European bias against Islam." 28 The campaign was successful and at its December 7, 2010 meeting the EU Council of Ministers rejected it. 29

Labelling Resurrected?
Interestingly, in February 2019, the European Court of Justice ruled that minced beef patties that were Halal certified, could not be labelled as a product of "organic farming" or bear the "organic" label. The French Oeuvre d'assistance aux bêtes d'abattoirs ("OABA") had made an application to the French Minister for Agriculture for the prohibition of the advertising and marketing of beef products certified Halal and showing an "organic farming" label. Its application refused, and for various technical reasons, OABA found itself in a final appeal to the European Court of Justice.
OABA argued that the un-stunned slaughter of animals in producing Halal meat was inconsistent with relevant EC Regulations concerning organic production of food items. animal welfare standards" in the production of organic food items 30 . Likewise, Recital 10 of Regulation 889/2008 (rules for the implementation of Council Regulation (EC) No 834/2007 on organic production and labelling of organic products with regard to organic production, labelling and control) states that one of the principles of organic farming is "to serve a high level of animal welfare." 31 In essence, OABA argued that un-stunned slaughtering of animals did not comply with the high animal welfare standards established by the Regulations.
The various respondents to the appeal countered with the argument that the requirement of "high animal welfare standards" required by Regulation 834/2007 was not incompatible with ritual killing intended to guarantee the freedom to practice one's religion. Unsurprisingly the Court noted that "the matter of how to answer the claim that the 'organic farming' indication is not to be used for meat derived from animals that have been ritually slaughtered without pre-stunning, which is decisive for the outcome of the dispute in the main proceedings, raises serious difficulty in the interpretation of EU law." 32 Despite this acknowledged difficulty, the Court accepted OABA's argument, holding that "scientific studies have should that pre-stunning is the technique that compromises animal welfare the least at the time of killing." 33 Having accepted the force of the scientific evidence, the Court concluded that un-stunned slaughter of animals "does not allow the animal's suffering to be kept to a minimum" as required by Regulation 834/2007.
At least in the EU, meat products sourced from animals slaughtered according to Halal and Kosher procedures would seem to be ineligible for "organic" certification, purely on the basis of diminished welfare associated with un-stunned slaughter.

Conclusions
The implication of the Court's decision is significant because it represents high-level EC judicial recognition of the preponderance of scientific evidence that the un-stunned ritual slaughter of animals causes more pain to an animal than pre-stunned slaughter. The decision also suggests that rather than attempting to prohibit the religious slaughter of animals, a practice explicitly protected by a suite of International Human Rights Instruments, labelling initiatives may be more strategic in informing consumers about the nature of the meat they are purchasing and consuming. In this way, the right to practice one's religion is preserved while also permitting consumers to exercise their purchasing decisions in a manner consistent with their ethical principles. Such labelling initiatives may be particularly relevant in circumstances where meat products from un-stunned animals are by-passing Halal and Kosher food chains and entering wider domestic markets. The debate continues.