State of the Apes Killing, Capture, Trade and Conservation 231
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230 Rights focus on how humans must treat other animals, and they provide nonhuman animals with a civil remedy if humans fall afoul of the law. © Paul Hilton/Earth Tree Images © Paul Hilton/Earth Tree if humans fall afoul of the law. nonhuman animals with a civil remedy other animals, and they provide Rights focus on how humans must treat Photo: State of the Apes Killing, Capture, Trade and Conservation 231 CHAPTER 8 The Campaign for Nonhuman Rights and the Status of Captive Apes Introduction This chapter is divided into two sections. Section I explores the fight for personhood and rights for nonhuman animals and Section II provides an update and broad- ening of the captive ape statistics that are included in each volume of the State of the Apes series. Two millennia ago, Roman law differen- tiated two main categories of legal status: “person” and “thing.” In more recent times, “persons” have been understood to possess the capacity for either legal rights or duties. Persons have inherent value and are visible to civil judges; they “count” in the legal sys- tem. In contrast, “things” lack the capacity for legal rights and duties. Their value is what persons give them. Things are invisible to Chapter 8 Status of Captive Apes 232 civil judges and do not “count.” In that sense, chimpanzee in the Zoological Garden of persons and things stand in complete oppo- Salvador, in Bahia, Brazil. The section goes sition to one another, separated by a great on to explore the idea of rights at the taxo- metaphysical wall (Byrn v. NYCHHC, 1972, nomic level. The key findings include: p. 201; Trahan, 2008). This dichotomy between things and In the United States, the Nonhuman persons mirrors the dichotomy between Rights Project has influenced the under- welfare and rights as they presently apply standing of personhood through a con- The NhRP has to nonhuman animals.1 Rules that govern certed, long-term strategic litigation influenced the welfare stipulate how human beings should campaign that argues for acknowledg- understanding“ of treat other animals. If humans fail to abide ment of chimpanzees’ complex cognition personhood through a by such rules, however, nonhuman animals and autonomy. concerted, long-term lack a civil remedy. While it may be weak The NhRP assumes that fair-minded strategic litigation on its own, welfare becomes vital when judges who are persistently exposed to campaign that argues combined with rights. Rights focus on compelling expert evidence of chimpan- for acknowledgment how humans must treat other animals, and zee autonomy, coupled with powerful of chimpanzees’ they provide nonhuman animals with a legal arguments derived from the values complex cognition civil remedy if humans fall afoul of the law and principles the judges themselves and autonomy. (Wise, 2017b). routinely espouse, will ultimately decide The Florida-based Nonhuman Rights that nonhuman animals deserve funda- Project (NhRP) situates the fight to obtain mental rights that protect their funda- ” fundamental legal rights for nonhuman mental interests. animals in the larger context of struggles for The NhRP has expanded its campaign social justice. Specifically, the NhRP utilizes beyond chimpanzees to include elephants, a legal strategy modeled on previous and furthering unprecedented consideration ongoing struggles in the United States: that of nonhuman rights in the United States of the abolitionists of the 18th and 19th centu- beyond species that are the most closely ries; that of the National Association for the related to humans. Advancement of Colored People (NAACP) Legal Defense and Educational Fund, which In a few civil law jurisdictions, the con- began the state-by-state fight for equal sideration of “personhood” for great apes rights for African Americans in 1940; and has resulted in more explicit acknowl- that of gay marriage advocates of the 21st edgment of rights, demonstrating value century (Cole, 2016, pp. 17–93; Greenberg, in pursuing legal campaigns. 2004, pp. xi, 5; Wise, 2005). In the United States, the NhRP has been Section II updates captive ape popula- fighting for the rights of great apes in cap- tion statistics and discusses the regulatory tivity under the common law system. In a landscape affecting captive apes. The key number of other countries, the same strug- findings include: gle is taking place under civil law. This sec- tion discusses current legal strategies and Details on the number, origin and wel- provides details on cases brought on behalf fare status of captive apes are only of individual apes, including Sandra, an available for some captive settings and orangutan at the Palermo Zoo in Buenos the quality of the data varies widely. Aires, Argentina; Cecilia, a chimpanzee at Available data suggest that the number Argentina’s Mendoza Zoo; Hiasl, a wild- of captive apes in zoos is relatively static, caught chimpanzee in Austria; and Suiça, a although there are notable exceptions. State of the Apes Killing, Capture, Trade and Conservation 233 Insufficient sanctuary space for seized side.3 The manner in which personhood and voluntarily released apes is a critical for all humans was finally established is a barrier to enforcement and compliance model for the work of the Nonhuman Rights in many countries. Project (NhRP, n.d.-e). Today, all humans In ape habitat countries, rescue centers are legal persons, while nonhuman animals and sanctuaries are taking in apes at an have generally remained things. For that unsustainably high rate, indicating that reason, many people, judges included, erro- urgent measures are needed to tackle the neously believe that the metaphysical wall killing and capture of apes, as well as the divides humans from other animals, rather trade in live apes. than persons from things. The UK’s passage of the Slave Trade Act of 1807 and the Slavery Abolition Act of The Struggle to Obtain 1833 marked an attack on the form of slavery that rested on the “thinghood” of certain Legal Rights for Non- human beings (UK Parliament, 1807, 1833). human Animals The first of these acts built on a milestone judgment in the famous Somerset case, Background delivered 35 years prior by Lord Mansfield, Nowadays, under the Universal Declara- who essentially abolished slavery in England tion of Human Rights and the International (Somerset v. Stewart, 1772). The formal Covenant on Civil and Political Rights, every anti-slavery struggle did not end until 1957, Details on the human on Earth is considered a “person” with the entry into force of the Supplemen- number, origin and (UN, 1948, art. 6; UN, 1966, art. 16).2 That tary Convention on the Abolition of Slav- “welfare status of was not always the case. Edith Hamilton, ery, the Slave Trade, and Institutions and captive apes are only arguably the leading classicist of the mid- Practices Similar to Slavery, which sup- available for some 20th century, reminds us of the first major plemented the League of Nations’ Slavery captive settings and turning point in the two-millennium struggle Con vention of 1926 (League of Nations, the quality of the data to abolish slavery. She describes slavery in 1926; UN, 1956). varies widely. ancient Greece: In 1976 the International Covenant on Civil and Political Rights entered into force When the Greek achievement is considered, (UN, 1966). Article 16 of the Covenant states: ” what must be remembered is that the Greeks “Everyone shall have the right to recognition were the first to think about slavery. To think everywhere as a person before the law.” It gives about it was to condemn it and by the end force to Article 6 of the Universal Declaration of the second century, two thousand years of Human Rights, which provides: “Everyone before our Civil War, the great school of the has the right to recognition everywhere as a Stoics, most widely spread of Greek philoso- person before the law” (UN, 1948). phies, was denouncing it as an intolerable But humans are not the only persons. wrong (Hamilton, 1964, p. 24). Numerous kinds of nonhumans have long been considered persons in countries that In the past, millions of humans—includ- use legal systems based on common law, ing slaves, women, children, Jews, indige- many of which are English-speaking (The nous peoples and the developmentally disa- Economist, 2013). Well-known examples bled—were treated like things. The civil include corporations, ships and states, rights work of the past centuries has been although the list does not end there. In 2017, slow to move these humans from the “thing” the parliament of New Zealand designated side of the metaphysical wall to the “person” the Whanganui River a person that owns its Chapter 8 Status of Captive Apes 234 Photo: Decades of exten- riverbed (New Zealand Parliament, 2017, 1925). Civil law countries, whose legal sys- sive research on chimpan- zees’ highly complex cl. 19). It had previously designated the Te tems are derived from Roman law, are cognition have revealed them to be autonomous Urewera protected area a legal entity, with moving in similar directions (AFADA v. as well as similar—and “all the rights, powers, duties, and liabilities Mendoza Zoo and City, 2016; Tello, 2016). therefore more under- standable—to humans. of a legal person” (New Zealand Parliament, In 2018, the supreme court of Colombia © Slobodan Randjelovic/ 2014, s. 11(1)). Pre-independence Indian designated the Amazon rainforest “an entity Arcus Foundation courts designated certain Punjab mosques subject of rights”—that is, a “person” (Colom- and a Hindu idol as “persons” with the capac- bian Supreme Court of Justice, 2018). ity to own property or sue (Masjid Shahid Over the years, the NhRP has made Ganj and others v. Shiromani Gurdwara numerous decisions regarding how best to Parbandhak Committee, 1938; Pramatha mount the world’s first sustained, strategic Nath Mullick v.