A pod of Southern Resident Orca
Recently, People for the Ethical Treatment of Animals (PETA) brought a civil action to have five Orca, named Tilikum, Katina, Corky, Kasatka and Ulises, kept in captivity at Sea World in San Diego, California recognised as ‘slaves’ and hence protected by the thirteenth amendment to the U.S. Constitution. For this action to succeed, the court would have to recognise the Orca as legal persons and accept that the thirteenth amendment should apply to them. Sea World has called it “baseless and in many ways offensive” and a “publicity stunt”.
Of course this approach, while garnering a good deal of publicity (even the NZ Herald published an (very basic) article), was doomed to failure. U.S. law professor, David Favre, suggested in a letter to the Associated Press that it is highly unlikely that the substantive matters of the case would even be argued as the plaintiffs will be interpreted as lacking standing. Even if this hurdle were overcome, the judges were very unlikely to consider that the original intention of the drafters of the Constitution can encompass non-humans.
Concern has been expressed by many animal advocates that this sort of publicity stunt runs the very real risk of undermining decades of careful argumentation around the recognition of the legal personality of non-human animals. Pursuing a cause of action that is virtually guaranteed to fail may establish a negative precedent which undermines future attempts to build an animal rights jurisprudence. The Non-Human Rights Project have summed up these concerns particularly well in ‘Ten Tillikum Takeaways‘.
Pioneering animal lawyer, Steven Wise, who has brought a separate action to PETA’s on different, more considered, grounds has reservations about the PETA approach. He has said it is “ill-conceived, impossible to win, and capable of damaging future animal rights legal law cases”, going further to suggest that PETA is plowing ahead because “it wants the case ‘to go down in history as the first time that a U.S. court considers constitutional rights for animals.’ Winning is beside the point.”
On January 26, over the objections of PETA and SeaWorld, Southern California District Court Judge Jeffrey T. Miller granted the request of Wise’s organisation, the Rights Project, to act as an Amicus Curiae (Latin: ‘friend of the court’) in a previously filed case where the plaintiffs are “Tilikum, Katina, Corky, Kasatka and Ulises, five orcas.” And while the center’s amicus curiae motion and Wise’s individual affidavit were accepted by the court, neither the defendants nor the group representing the plaintiffs wanted him involved.
Wise also highlights an interesting (at least for lawyers) jurisdictional issue. As the five orcas were forcibly removed from the coastal waters of Iceland and British Columbia, he argues that those are still their legal homes. He goes further to argue that those nation’s laws must determine whether or not the orcas have the capacity to sue and are “incompetent persons”. For Corky, that means the law of British Columbia. For Tilikum, Katina, Kasatka and Ulises, it’s the law of Iceland. This, he says, would have to precede “the issue of whether the orcas are slaves within the meaning of the 13th Amendment”.
One of the great obstacles to justice in the treatment of animals (in fact, anything that is not human) is the legal doctrine of standing. Simply put, ‘standing’ means recognition in law of a person or thing as having a right to bring, or be the object of, legal action. Human beings have standing, corporations have standing, non-human animals do not. With the exception of protected native animals, they are protected only by welfare laws which purport only to prevent undue cruelty in the treatment of any animal. The right to capture and kill is unquestioned. The only requirement is that the killing and treatment of an animal while it is alive does not cause ‘unreasonable’ or ‘unnecessary’ pain.
But there are some animals, sometimes referred to as ‘charismatic megafauna’, with whom we feel a bond of commonality. This may be because of similarity to us (Great Apes), admiration and recognition of intelligence (cetaceans, i.e. whale and dolphins), or even iconic status (native animals). These animals often enjoy special protections under law preventing them from being caught or killed without permission from the state. But this is because they are, depending on the jurisdiction, the property of the state or the state has the monopoly on regulation of how they will be treated.
Now it is being widely argued that whales and dolphins should have legal rights. Although, it would be perhaps more correct to say that they will be recognised as having legal ‘personhood’. I am wary of the language of rights in this context because of its liberal-democratic connotations. It is all too easy for reductio ad absurdum arguments to be made deriding strawman arguments such as the idea of horses having the right to vote or dogs owning property. For instance, University of Chicago law professor, Richard A. Epstein, posited in a 1999 New York Times editorial that if we follow this reasoning bacteria may have rights. He concluded that “there would be nothing left of human society if we treated animals not as property but as independent holders of rights”. Although it is hard to take such a melodramatic claim seriously, it is a surprisingly common refrain among those who would rather not consider the issue.
But the matter needn’t be so complex. I favour the elegance of this formulation by Professor Gary Francione: “The only right an animal needs is the right not to be property”.
Philosopher and ethicist Peter Singer, who co-founded the Great Ape Project with Italian philosopher Paola Cavalieri in 1993, calls only for limited rights akin to those afforded humans, such as freedom from torture, not rights to things like medical care or education.
The Helsinki Group was formed out of the Cetacean Rights: Fostering Moral and Legal Change
Conference’ held in Helsinki, Finland in May 2010. The group has drafted this Declaration taking a more detailed approach to categorising the rights of whales and dolphins:
Declaration on the Rights of Cetaceans: Whales and Dolphins
Based on the principle of the equal treatment of all persons;
Recognizing that scientific research gives us deeper insights into the complexities of cetacean minds, societies and cultures;Noting that the progressive development of international law manifests an entitlement to life by cetaceans;
We affirm that all cetaceans as persons have the right to life, liberty and wellbeing.We conclude that:
1. Every individual cetacean has the right to life.
2. No cetacean should be held in captivity or servitude; be subject to cruel treatment; or be removed from their natural environment.
3. All cetaceans have the right to freedom of movement and residence within their natural environment.
4. No cetacean is the property of any State, corporation, human group or individual.
5. Cetaceans have the right to the protection of their natural environment.
6. Cetaceans have the right not to be subject to the disruption of their cultures.
7. The rights, freedoms and norms set forth in this Declaration should be protected under international and domestic law.
8. Cetaceans are entitled to an international order in which these rights, freedoms and norms can be fully realized.
9. No State, corporation, human group or individual should engage in any activity that undermines these rights, freedoms and norms.
10. Nothing in this Declaration shall prevent a State from enacting stricter provisions for the protection of cetacean rights.
Various rationales are raised for extending legal personality to marine mammals. The Helsinki Group takes evidence of the marine mammals’ intelligence, self-awareness and complex behaviour as the basis for this.
Another promising example of the type of standing arguments being formulated in the United States is that of the Animal Legal Defense Fund (ALDF) in a suit brought in the Western Washington District Court on the 17th of November 2011. The ALDF make a reasonably sophisticated argument for recognition of ‘Existence Value‘ with an intellectual move that situates the discussion in partially-anthropocentric terms by advancing the desire of humans to preserve a resource and to the injury they would suffer if that resource were compromised. For an excellent discussion of existence value, see Richard Revesz’s, Retaking Rationality. This makes clear the distinction of existence value from intrinsic value which recognises the value of nature independent of its utility to humans.
The ALDF’s contention in this case is that the National Marine Fisheries Service (NMFS) has acted illegally in excluding Lolita, a solitary orca who has been confined to a tiny concrete tank at the Miami Seaquarium for more than 40 years, from the US Endangered Species Act (ESA). The ESA provides members of the wild Southern Resident Orca population and other endangered animals with a host of protections, including protection against being harmed or harassed. Yet, despite being a member of the Southern Residents, Lolita has been denied all of these protections without any explanation by NMFS. The plaintiffs argue that NMFS’ regulatory exclusion from ESA listing of captive Southern Resident Orca is illegal. The case will be decided soon.
Wise’s interdisciplinary Nonhuman Rights Project has about 50 people in the US formed into six working groups to examine relevant state laws and legal precedents with a view to advocating for legal personhood for animals. They are researching, for example, how proponents of gay marriage chose jurisdictions in which to litigate and how certain high courts deal with non-autonomous humans like the comatose, mentally handicapped, embryos, and fetuses. The aim is to identify the most promising causes of action and the viable states and jurisdictions in which to file suit.
A kind of legal middle position is advanced by David Favre, who stops short of the goal of full legal personhood for animals. He advocates for increasing their legal recognition incrementally to perhaps include the kind of guardianship protections afforded children, the senile and the insane. He also proposes a very interesting halfway house, which he calls ‘living property‘, between full recognition of rights and the status of animals as property. This is the argument that the status of animals be split into legal and equitable estates. This way, the legal ownership of animals could remain with their human owners but the animal would retain equitable interests that could be protected by trustees who would therefore be able to advocate for the interests of animals and even hold property (e.g. money for maintenance and veterinary care) on their behalf.
With such a broad scope of ethical and legal approaches to legal personhood for non-humans, it will be a very interesting next few decades for animal rights advocacy. I fear though, that it may be too late for New Zealand’s very rare Maui’s Dolphin which faces imminent extinction due to trawling and fishing with set-nets. If this happens, New Zealand will be only the second country in the world to cause a cetacean to go extinct because of human action. The first was China where pollution and overfishing in the Yangtze River drove the Baiji freshwater dolphin to extinction in 2007.
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