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Posted by on Dec 31, 2014 in Nature, News and Events | 3 comments

Orcas, Orangutans, Elephants: Legally human, non-human or something in between?

Orca at Miami Seaquarium photo by Marc Averette. CC by 3.0

Orca families exhibit some of the tightest family bonds in the animal world, with all of the descendents on the mother’s side living together for their entire lives. Orca at Miami Seaquarium photo by Marc Averette. CC by 3.0

In 2011, the animal rights group People for the Ethical Treatment of Animals (PETA) filed a lawsuit against SeaWorld. Citing the the 13th Amendment abolishing slavery, PETA claimed that five wild-captured orcas were “enslaved” and demanded their release.

To which I did the big eye-roll.

Sure, I’m all for animal rights, but in my mind, giving animal the same legal status and rights as humans makes no sense for a whole raft of reasons.  Predictably, the case was dismissed.

Then, on December 22, 2014, a court in Argentina apparently recognized a 29-year-old Sumatran orangutan named Sandra as a “non-human person.

Media reports stated that the court had declared that she had been unlawfully deprived of her freedom and ordered her freed from her zoo confinement and transferred to a sanctuary.  While this may not be strictly true (see below) it brings up an interesting point.

Sumatran Orangutan Photo by Greg Hume  CC 3.0

These “People of the Forest” make and use tools and have culture. Sumatran Orangutan Photo by Greg Hume CC by 3.0

 

“Non-human person”

Now there’s a concept I had never considered.

Why not confer a special status on some animals – a legal status that would treat them as more than just property and would grant them certain legal rights without going as far as to grant them all of the rights and responsibilities of legal personhood?

After a bit of Googling I found out that this idea of a special “non-human person” status is not a new concept. In fact, there are entire organizations devoted to this conceptual shift.

Acting on behalf of Sandra was the Association of Officials and Lawyers for Animal Rights, AFADA as it is known by its Spanish acronym. They filed a habeas corpus which challenged the legality of Sandra’s detention.

A habeas corpus is a document used to challenge the legality of a person’s detention or imprisonment. In Sandra’s case, the court declared (in the English translation) (bold mine):

“That based on a dynamic rather than a static interpretation of the law, it is necessary to recognize the animal as a subject of rights, because non-human beings (animals) are entitled to rights, and therefore their protection is required by the corresponding jurisprudence.”

But, as Steve Wise, attorney for the Nonhuman Rights Project clarified, it’s not clear what, exactly, was meant by the court ruling. Reviewing a careful translation of the court documents, Wise states “the court did not appear to have issued a writ of habeas corpus, or ordered Sandra to a sanctuary.”

Perhaps the media got ahead of itself.  Even so, this would not be the first time that a non-human animal has been granted hearing on the basis of habeas corpus. Though would be the first one in which the subsequent case was won and the animal freed.

In March 2014, an Argentinian court granted an appeal of a habeas corpus petition filed by AFADA on behalf of Arturo, a 28-year old polar bear at the Mendoza (Argentina) Zoo.

 

According to some scientists, polar bears are as intelligent as apes. Polar bear at Toronto Zoo. Photo mine.

According to some scientists, polar bears are as intelligent as apes. Polar bear at Toronto Zoo. Photo mine.

 

The appeal was granted and the case moved to the courts where the decision as to whether Arturo should be moved to a center for polar bears in Canada will be weighed.

In the US, in November of 2013, the Nonhuman Rights Project filed a writ of habeas corpus asking a NY state court to grant Tommy, a privately owned (and terribly neglected) chimpanzee, his liberty.

“Like humans,” the legal memo reads, “chimpanzees have a concept of their personal past and future . . . they suffer the pain of not being able to fulfill their needs or move around as they wish; [and] they suffer the pain of anticipating never-ending confinement.” — Charles Siebert – The New York Times Magazine

The plea was unsuccessful and on December 5, 2014, the New York State Appellate Court handed down its decision (bold mine):

Noting that the Nonhuman Rights Project “requests that this Court enlarge the common-law definition of ‘person’ in order to afford legal rights to an animal,” the Court’s decision was that “We decline to do so, and conclude that a chimpanzee is not a “person” entitled to the rights and protections afforded by the writ of habeas corpus. (The Nonhuman Rights Project)

However, even without addressing habeas corpus, some states and countries have moved to treat some animals as non-human persons, granting them legal rights and protections.

In May of 2013, India’s Ministry of Environment and Forests made it illegal to keep captive dolphins for public entertainment anywhere in the country. Their statement read, in part:

“Whereas cetaceans in general are highly intelligent and sensitive, and various scientists who have researched dolphin behavior have suggested that the unusually high intelligence; as compared to other animals means that dolphin should be seen as ‘non-human persons’ and as such should have their own specific rights and is morally unacceptable to keep them captive for entertainment purpose.”

While that may have seemed laughable even 30 years ago, we’re at a point today where the scientific evidence is piling up in favour of some animals advanced cognitive abilities and the recognition that their needs extend beyond just adequate food, water and shelter as provided by animal welfare laws.

Based on their cognitive sophistication, emotional awareness, and their complex social dynamics, high on the list of deserving animals would be cetaceans (whales and dolphins), non-human primates, especially the great apes (chimpanzees, gorillas, orangutans), elephants, bears and some birds, including some parrots.

Keas can solve logic problems and work cooperatively to achieve goals. Markus Koljonen CC by 2.5

Keas can solve logic problems and work cooperatively to achieve collective goals. Markus Koljonen CC by 2.5

Along with our new understanding, public sentiment is beginning to shift.

The recent backlash against SeaWorld after the 2010 death of orca trainer Dawn Brancheau and the subsequent 2013 publication of the expose’ Blackfish was so enormous that SeaWorld’s stock has plummeted. People aren’t just crying about the plight of performing orcas. They are staying away in droves.

In March of this year, after consulting with marine mammal experts, California assembly-member Richard Bloom introduced Bill AB 2140 the “California Captive Orca Welfare and Safety Act.”

If passed, the bill would end performance-based entertainment for all killer whales in California, end captive breeding programs for the species within the state, prevent the import and export of genetic materials for breeding programs elsewhere, prevent the import and export of the whales themselves, and more. – Jason Goldman

As you can imagine, SeaWorld is doing everything in its power to prevent the bill from passing.

But other aquaria appear to be more progressive and open-minded. This year the National Aquarium in Baltimore convened a panel of experts to discuss whether its eight dolphins should be moved to a beachside sanctuary.

Meanwhile, the city of San Francisco passed a resolution that states that whales and dolphins deserve “to be free of captivity, and to remain unrestricted in their natural environment.”

While not binding and not calling for the ban of captive animals in the city, the resolution is certainly a first step towards recognizing that a greater degree of rights should be afforded these animals.

“With each resolution that gets passed, it becomes more and more difficult for SeaWorld to claim that cetaceans belong in captivity.” – Russell Tenofski

The idea of granting certain animals a special legal status that affords them rights beyond their basic needs seems to me a rational approach to the issue of captive and performing wildlife. It will be interesting to follow these cases and new ones that arise.

I expect that in the not-too-distant future we will wonder why we ever thought it was acceptable, in the interest of entertainment and profit, to capture, breed and commit generations of these intelligent beings to a lifetime of captivity.

 

Photo by Robert Pitman, NOAA

Photo by Robert Pitman, NOAA

READ MORE

This look into the history of animals as legal agents and the newly emergent field of animal law is well worth reading:

Should a Chimp Be Able to Sue its Owner? by Charles Siebert in the New York Time Magazine

3 Comments

  1. A similar fight has been ongoing at the Vancouver Aquarium re their captive breeding program. I’m not sure if those against the breeding use the same ‘non-human persons’ argument you outline here, but there’s definitely a change in sentiment towards cetaceans in captivity.

  2. I was a bit confused by this post. At the beginning, in response to the PETA case, you say, “Sure, I’m all for animal rights, but in my mind, giving animal the same legal status and rights as humans makes no sense for a whole raft of reasons.” But then you don’t enumerate any of those reasons and eventually conclude that, “the idea of granting certain animals a special legal status that affords them rights beyond their basic needs seems to me a rational approach to the issue of captive and performing wildlife.”

    If the sole tension you were trying to point out is that you don’t think animals should be granted *identical* legal status as humans, affording them *all* the rights we allow ourselves under national and international law, then I think you’re positioning yourself against a notion that not even the most vociferous wildlife advocates believe in. The fight has always been about recognising sensible and selective rights.

  3. Hi Callum,

    I see your point. Let me clarify. The tension in this post was more about the evolution of my own thinking on the subject.

    I have always had a love-hate relationship with PETA. They have done some very good work, but, in my opinion, not always in an acceptable way. Their over-the-top antics have been enough to make me wary of anything that smacks of “publicity stunt” — which is exactly where I mentally filed the slave-dolphin case.

    It was only later, after really looking into what the Nonhuman Rights Project and others were doing, that I realized there is rational middle ground that I’m willing to hang my hat on (to mix metaphors) and that decades ago, I might have considered that middle ground to be extreme.

    Thanks for adding to the conversation.

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