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Legal Standing of Animals: How the plight of five Orca has come to be at the vanguard of animal rights jurisprudence

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.” Continue reading

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