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 Photo: Rights focus on how humans must treat

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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

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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.

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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 Con­vention 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

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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. Pradyumna Kumar Mullick, campaign for the legal rights of nonhuman

State of the Apes Killing, Capture, Trade and Conservation 235 animals. The NhRP chose chimpanzees as 2013). The NhRP anticipated that such judges the first plaintiffs, mainly because decades would interpret the word “person” in the of extensive research on their highly com- context of a statute or constitution and plex cognition have revealed them to be thus conclude, at least initially, that the term autonomous as well as similar—and there- had not been intended to encompass non- fore more understandable—to humans. The human animals. Flexibility is touted as the NhRP then decided to argue that chimpan- glory of common law, however, and judges zees have legal rights under common law, are required to create law in the interstices which common law judges typically use of statutes and constitutions to keep the law while deciding cases whose outcomes are current with scientific discovery and the not mandated by statutes, constitutions evolution of societal mores and human or treaties (NhRP ex rel. Tommy v. Lavery, experience (Morrow, 2009, p. 158). The judges would need to be persuaded that, as a matter of justice, at least some nonhuman animals should be seen as persons entitled to at least some rights. The NhRP decided that its initial law- suits would focus on a chimpanzee’s right to bodily liberty, since science has demon- strated that apes, as autonomous beings, have a fundamental interest in this freedom, and since humans can easily relate to this interest (NhRP ex rel. Tommy v. Lavery, 2013). The next step involved identifying persuasive legal arguments. To that end, the NhRP first studied the judicial values and princi- ples that courts of the potential target juris- dictions—including every US jurisdiction and most other common law jurisdictions throughout the world—claimed constituted justice. Once the NhRP had decided in which jurisdictions it would first litigate, it fashioned its legal arguments accordingly. It turns out that nearly every common law judge anywhere embraces the para- mount importance of autonomy—that is, one’s liberty to freely choose, within wide parameters, how one wishes to live one’s life. In referring to decisions about medical treatment, for instance, New York’s highest court, the Court of Appeals, states:

In our system of a free government, where notions of individual autonomy and free choice are cherished, it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to

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insure that the greatest possible protection is (NhRP ex rel. Tommy v. Lavery, 2013). accorded his autonomy and freedom from Habeas corpus is Latin for “you have the unwanted interference with the furtherance of body” and is referred to as the “great writ” his own desires (Rivers v. Katz, 1986, p. 493). (Hamdi v. Rumsfeld, 2004, p. 536). In a case the NhRP brought on behalf of two chim- The NhRP does not claim that auton­ panzees, Hercules and Leo, the New York omy is a necessary condition for rights, County Supreme Court found: only that it is sufficient (NhRP ex rel. Tommy v. Lavery, 2013). Following the legal “The great writ of habeas corpus lies at the analysis, the NhRP gathered every scientific heart of our liberty” [. . .] and is deeply rooted fact that supports chimpanzee autonomy in our cherished ideas of individual autonomy from respected experts in chimpanzee and free choice [. . .]. As “[t]he remedy against cognition and behavior worldwide. These illegal imprisonment,” the writ is described scientists—including James Anderson, as “the greatest of all writs” and “the great Christophe Boesch, Jennifer Fugate, Jane bulwark of liberty.” [. . .] The writ of habeas Goodall, Mary Lee Jensvold, James King, corpus “has been cherished by generations of Tetsuro Matsuzawa, William C. McGrew, free men [sic] who had learned by experience Mathias Osvath and Emily Sue Savage- that it furnished the only reliable protection Rumbaugh—filed supporting affidavits in of their freedom” (NhRP ex rel. Hercules and each case (NhRP, n.d.-c). Leo v. Stanley, 2015, p. 903). The judicial values and principles included several senses of equality; the As habeas corpus writs may only be NhRP emphasizes two from the 1996 case issued on behalf of a person, and not a of Romer v. Evans. It was in that case that thing, a paradox has existed whenever the the United States Supreme Court struck writ has been wielded to demand that a down an amendment to the Colorado Con­ thing—whether a human slave or a chim- stitution that repealed existing legislation panzee—be recognized as a person. In 18th- prohibiting discrimination based on sexual century England, Lord Mansfield assumed orientation. The Court said that, as a matter that James Somerset might be a person and of equal protection, a classification that used issued the writ (Somerset v. Stewart, 1772). a single trait to deny a class protection across In the United States, however, antebellum the board was “at once too narrow and too broad. It identifies persons by a single trait Southern courts unanimously refused to and then denies them protection across the do so whenever slaves alleged they were board” (Romer v. Evans, 1996, p. 633). Using persons, arguing that they were things a similar line of reasoning, the NhRP planned (Finkelman, 2012). The NhRP confronts to argue that the inappropriate single trait this paradox whenever it demands that a was species. The Supreme Court also said court issue the writ on behalf of a nonhuman that the amendment violated the requirement animal. It responds by urging the court to that a classification must bear a rational follow the example of Lord Mansfield, relationship to some “legitimate legislative namely to issue the writ and then conduct end” (p. 633). The NhRP thus planned to the hearings, which, in Somerset’s case, led argue that the arbitrary imprisonment of an Lord Mansfield to declare slavery so “odious” autonomous being of any species is not a that common law would not support it and legitimate end for any government. to order Somerset’s release, thereby implic- Finally, the NhRP decided to bring writs itly abolishing human slavery in England of habeas corpus on behalf of its plaintiffs (Somerset v. Stewart, 1772, p. 19).

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To alter the thinghood of a nonhuman Photo: Humans and chim­ Establishing Chimpanzees’ panzees demonstrate self- animal, a judge must first be able to imag- Complex Cognition awareness through mirror ine that a thing could possibly be a person. self-recognition, alongside and Autonomy capacities that stem from Otherwise, how could a judge distinguish self-awareness, such as self-reflection. Negra, CSNW the claim of a chimpanzee from the claim Having established the framework for a © Chimpanzee Sanctuary of a chair? Lord Mansfield understood that legal strategy, the NhRP identified the Northwest a slave could possibly be a person. Likewise, above-mentioned experts, who agreed to some judges can imagine that a chimpanzee file affidavits in which they demonstrate might be a person; others cannot. that chimpanzees are autonomous (NhRP,

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n.d.-c). One of them, psychology professor awareness, such as self-monitoring and James King, helpfully defines autonomy as: self-reflection; both are also aware of what they know and do not know. behavior that reflects a choice and is not based Chimpanzees demonstrate purposeful on reflexes, innate behavior or on any conven- communication, conversation, imagi- tional categories of learning such as condi- nation, humor and perspective-taking. tioning, discrimination learning, or concept Chimpanzees may display a sense of formation. Instead, autonomous behavior humor and laugh under many of the implies that the individual is directing the same circumstances in which humans behavior based on some non-observable inter- laugh. nal cognitive processes (King, 2013, para. 11). Chimpanzees point and vocalize when To alter the This is unsurprising, as humans and they want another individual to notice thinghood of a chimpanzees share almost 99% of their something and can “adjust their gestur- nonhuman“ animal, DNA and are evolutionarily more closely ing to insure they are noticed” (Anderson, a judge must first be related than chimpanzees are to gorillas 2013, p. 5). They can communicate what able to imagine that a (IUCN SSC, n.d.; Smithsonian Institute, they are about to do, where they are thing could possibly n.d.; Varki and Altheide, 2005; see the Apes going and what assistance they want be a person. Overview). That being the case, humans from others. They can comment on and chimpanzees share a number of attrib- others and how they feel, answer ques- utes and traits (Anderson, 2013; Boesch, tions about their companions’ likes and ” 2013; Fugate, 2013; Jensvold, 2013; King, dislikes, and tell researchers what other 2013; Matsuzawa, 2013; McGrew, 2013; apes want. Those who understand spoken Osvath, 2013; Savage-Rumgaugh, 2013): English can answer “yes/no” questions about their thoughts, plans, feelings, The brains and behavior of both intentions, dislikes and likes. humans and chimpanzees are plastic, Both language-using captive chimpan- flexible and heavily dependent on learn- zees and wild chimpanzees understand ing. The brains develop and mature in conversational give-and-take and adjust similar ways, indicating that humans their communication to the attentional and chimpanzees pass through similar state of the other participant, using visual cognitive developmental stages. gestures towards an attentive partner and Both species develop “increasing levels using more tactile and auditory gestures of consciousness, awareness and self- towards inattentive partners. understanding throughout adulthood, Chimpanzees can engage in at least six through culture and learning” (Savage- forms of imaginary play, including ani- Rumgaugh, 2013, p. 6). mation, which involves pretending that Chimpanzees and humans share the an inanimate object is alive; substitution, “fundamental cognitive processes” that which involves pretending that an object underlie their sense of being an inde- is something else; and imaginary private pendent agent, which is a fundamental signing, in which chimpanzees lend a component of autonomy (Matsuzawa, sign or its referent a different meaning. 2013, p. 7). Since they possess mirror neurons that Both species demonstrate self-awareness allow them “to share and relate to through mirror self-recognition, along- another’s emotional state,” chimpanzees side capacities that stem from self- can be attuned to others’ experiences,

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visual perspectives, knowledge states, about 20 different tools that chimpanzees and emotional expressions and states often use in a specific sequence, such as (Fugate, 2013, p. 5). This forms the basis for foraging and processing food, mak- for empathy—the ability to place oneself ing comfortable and secure sleeping in another’s situation and to identify nests in trees, and for personal hygiene with and understand “another’s situa- and comfort. These tool kits vary across tion, feelings and motives”—which is groups; chimpanzees learn them by linked to self-recognition. Thus, chim- observing others using them. panzees show concern for others in risky With respect to social culture, chim- situations (Anderson, 2013, p. 4). panzees pass on widely variable social Both in the wild and in captivity, chim- displays and social customs from one panzees may engage in sophisticated generation to the next. Thus, in one tactical deception, an ability related to chimpanzee group, “arbitrary symbolic imaginary play. This behavior, which gestures” may communicate the desire requires attributing mental states and to have sex, while in another group an motives to others, allows them to devise entirely different symbolic gesture strategies and counter-strategies expresses the same desire (McGrew, designed to outwit others. 2013, p. 10). Chimpanzees can engage in toolmak- The most important mental abilities for Chimpanzees ing, which implies the possession of culture are imitation and emulation, demonstrate purpose- complex problem-solving skills and evi- each of which requires learning by ful“ communication, dences understanding of means–ends observation. Chimpanzees use both. conversation, imagi- relations and causation. They use “tool They also engage in “deferred imitation,” nation, humor sets”—that is, two or more tools in an which involves copying actions that and perspective- obligate sequence—to achieve a goal. they have seen in the past. This behavior taking. They might use a set of five objects—a relies on capacities that are more sophis- pounder, perforator, enlarger, collector ticated than direct imitation, as chim- and swab—to obtain honey, for instance. panzees must remember the actions of ” Such sophisticated tool use involves another individual while replicating choosing appropriate objects in a com- them in real time. These capacities for plex sequence to obtain a goal they imitation and emulation are necessary keep in mind throughout the process; the for the “cumulative cultural evolution” sequencing and mental representation that allows chimpanzees to build on— are hallmarks of intentionality, self- and maintain—customs within a group regulation and autonomy (McGrew, (McGrew, 2013, p. 11). 2013, p. 6). Chimpanzees have a conscious aware- At least 40 wild chimpanzee cultures ness of “numerosity,” which gives them exist across Africa and use combinations a grasp of numbers. of more than 65 identified behaviors. Each wild chimpanzee cultural group Chimpanzees’ cognitive capabilities, makes and uses a unique “tool kit,” separately and together, have proven to be which indicates that chimpanzees form important to judges who honestly struggle mental representations of a sequence of to determine whether, and to what extent, acts aimed at achieving a goal (McGrew, chimpanzees should be legal persons with 2013, p. 7). A tool kit is a unique set of certain fundamental rights (Anderson, 2013;

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Boesch, 2013; Fugate, 2013; Jensvold, 2013; exploitive ways that the culture has long King, 2013; Matsuzawa, 2013; McGrew, 2013; accepted. When thinking about humans, dif- NhRP, n.d.-c; NhRP ex rel. Tommy v. ferent clusters of neurons are subconsciously Lavery, 2018, pp. 1057–8; Osvath, 2013; triggered depending upon the degree to which Savage-Rumgaugh, 2013). one identifies with the subject. Imagine how differently a judge is likely to view even such a close relative to humans as a chimpanzee Engaging the Values and (Wise, 2017a, pp. 13–14). Principles of US Judges Many judges are therefore likely to be The NhRP’s long- The NhRP grounds its legal arguments in implicitly biased against the arguments the term strategy assumes the values and principles of the judges in NhRP presents, just as they are, like every- that“ if fair-minded any jurisdiction in which it litigates, with one else, likely to be biased about race, judges are persistently the aim of leaving judges with four potential gender, sexuality, religion, weight, age and exposed to compelling responses. The NhRP has grouped judges ethnicity (Eberhardt, 2019; Project Implicit, expert evidence of a into four corresponding categories. n.d.). This bias shows that “our minds have chimpanzee’s complex The “evenhanded judges” are the ones been shaped by the culture around us. In cognition and who apply their jurisdiction’s fundamental fact, they have been invaded by it” (Banaji autonomy, coupled values and principles of justice to the claims and Greenwald, 2014, pp. 138–9). with powerful legal brought on behalf of chimpanzees. They Implicitly biased judges bypass their arguments derived recognize these great apes as persons with own fundamental values and principles of from the values and a capacity for rights, and then they fairly justice to insist, ad hoc or through the mis- principles that the consider which rights chimpanzees should application of precedent or principle, that judges themselves be entitled to. these cannot apply to a nonhuman animal. routinely espouse, The second category—the “temporizing Rights, they say, apply only to human beings, they will struggle in judges”—are the ones who would argue that just because they are human beings. Yet, good faith to justice in their jurisdiction only appears to as Martin Luther King Jr. noted, “Injustice overcome their be constituted by certain fundamental values anywhere is a threat to justice everywhere” implicit biases. and principles, but that it actually is not. This (King, 1963). It follows that undermining position would have the benefit of allowing the rationale for attributing rights to non- the NhRP to file new lawsuits calling for human animals inevitably undermines the ” updated values and principles. To date, no rationale for human rights. As Robert Cover US court has taken this position. observes of judges who upheld human “Implicitly biased judges” may under- slavery in the 19th century, theirs is “the mine their own fundamental values and principles of justice by basing their deci- story of earnest, well-meaning pillars of sions on implicit bias, thereby enacting legal respectability and of their collaboration “prejudice in the form of law” (Yankwich, in a system of oppression” (Cover, 1975, p. 6). 1959, p. 257). Indeed: Decisions that deprive all nonhuman animals of rights merely because they are not Present judges have been raised in a culture humans are examples of biased judging. that pervasively views all nonhuman animals The implicit bias of US judges has long led as “things.” As are most of their fellow citizens, them to undermine their own fundamental most judges are daily and routinely involved values and principles, rather than applying in the widespread exploitation of nonhuman them to those excluded from justice. These animals, eating them, wearing them, hunting judges once refused to grant legal rights to them, and engaging in other of the numerous black people. The US Supreme Court once

State of the Apes Killing, Capture, Trade and Conservation 241 limited the legal right to have sex to hetero- The Legal Campaign sexuals, just as it allowed US citizens of Focus on Chimpanzees Japanese descent to be interned in camps in New York State solely because of their ancestry (Bowers v. Hardwick, 1986; Korematsu v. United States, In December 2013, after 28 years of prepa- 1944). Courts limited personhood to men ration, the NhRP commenced its long-term or refused to grant equal rights to women strategic litigation campaign. It filed its first just because they were women. A case in habeas corpus lawsuit on behalf of Tommy, point is that of Lavinia Goodell, who in 1875 a chimpanzee long imprisoned a few miles sought admission to the Wisconsin bar, only from the courthouse on a used trailer lot in to be refused access by the state’s supreme Fulton County, in central New York State. court, on the sole grounds that she was a There the NhRP encountered its first implic- woman (Wisconsin Supreme Court, 1875). itly biased judge, who, without further expla- The court held that: nation, stated at the hearing’s conclusion:

The law of nature destines and qualifies the Your impassioned representations to the female sex for the bearing and nurture of the court are quite impressive. The Court will children of our race and for the custody of the not entertain the application, will not recog- homes of the world and their maintenance in nize a chimpanzee as a human or as a person love and honor. And all life-long callings of who can seek a writ of habeas corpus under women, inconsistent with these radical and Article 70. I will be available as the judge for sacred duties of their sex, as is the profession any other lawsuit to right any wrongs that of the law, are departures from the order of are done to this chimpanzee because I under- nature; and when voluntary, treason against it stand what you are saying. You make a very (Wisconsin Supreme Court, 1875, p. 245). strong argument. However, I do not agree with the argument only insofar as Article 70 Judges in the fourth category—“deflect­ applies to chimpanzees (NYS Supreme Court, ing judges”—want the NhRP’s cases to end 2013c, p. 26). without being judged on their merits. They may dismiss a lawsuit seeking legal rights The following day, the NhRP sued on for chimpanzees on a procedural point or behalf of a chimpanzee named Kiko, who refuse to hear its arguments or issue the writ. was imprisoned in a storefront in Niagara The NhRP’s long-term strategy assumes County, New York, near the Canadian that if fair-minded judges are persistently border. There it encountered its second exposed to compelling expert evidence of a implicitly biased judge. He desired to chimpanzee’s complex cognition and auton- review the voluminous documents before omy, coupled with powerful legal arguments holding oral argument by telephone the fol- derived from the values and principles that lowing week, when he concluded: the judges themselves routinely espouse, they will struggle in good faith to overcome I have to say your papers were excellent [. . .]. their implicit biases. The expectation is that However, I’m not prepared to make this leap they will arrive at the legally, historically, of faith and I’m going to deny the request for politically and morally correct decision that a petition for writ of habeas corpus. I think autonomous nonhuman animals deserve personally this is more of a legislative issue the fundamental rights that can protect their than a judicial issue (NYS Supreme Court, fundamental interests. 2013b, p. 15).

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Photo: In 2013, the NhRP When the judge unexpectedly tried to NhRP lawyers; instead, he scrawled a two- filed its first unlawful imprisonment lawsuit on halt the NhRP’s appeal by refusing to take a sentence dismissal (NhRP, n.d.-d; NYS behalf of Tommy, a chim­ panzee long caged on a necessary ministerial action, the NhRP was Supreme Court, 2013a). used trailer lot in New York forced to seek action from the appellate court New York State has four intermediate State. © “Unlocking the Cage” Pennebaker that oversaw this judge. Specifically, the NhRP appellate courts that hear appeals according Hegedus Films asked for a rare writ of mandamus, a request to geographical area. The first judicial depart- for an order to require public officials—in this ment covers Manhattan and the Bronx; the case, the judge—to do their nondiscretionary second is responsible for the rest of New York duties (NhRP ex rel. Kiko v. Boniello and City and the state’s southern counties; the Presti, 2014). The trial court judge then took third hears appeals from central and north- the required action and the appeal proceeded. ern counties; and the fourth deals with the Two days later, the NhRP filed suit in western counties (NYCourts.gov, n.d.). In Suffolk County on Long Island, New York, early 2014, the NhRP appealed Hercules on behalf of Hercules and Leo, two young and Leo’s dismissal to the second judicial chimpanzees who had been removed from department, where it encountered its first their Louisiana-based mothers when they deflecting court, which took the extraordi- were two years old and then imprisoned nary step of dismissing the appeal without in a cage in the basement of a Stony Brook allowing the NhRP to file a brief or argue. University computer building for about six This ruling was clearly a mistake, albeit no years. At the university, they were placed accident; the court affirmed its mistake under general anesthesia almost monthly even after the NhRP pointed out that it had and had wires inserted into their muscles, an absolute right to appeal (NhRP, n.d.-d; all to help researchers better understand NYS Supreme Court, 2014). In response, the how chimpanzees develop bent legs. In NhRP decided to refile the case in another this case, the judge did not see or hear the court at another time.

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The NhRP now appealed Tommy’s case as it is undeniable that, collectively, human to the third judicial department, which beings possess the unique ability to bear legal proved to be the paradigm of an implicitly responsibility. Accordingly, nothing in this biased court. The judge’s disagreement with decision should be read as limiting the rights the NhRP turned mostly on whether a of human beings in the context of habeas “person” must have the capacity to possess corpus proceedings or otherwise) (People ex either rights or duties, or both rights and rel. NhRP v. Lavery, 2014, p. 152, n. 3). duties. In ruling the latter, the court par- tially relied upon the definition of “person” The result was that, for the first time in found in Black’s Law Dictionary, the most the thousand-year history of common law, widely used US law dictionary, which states a court ruled that the only type of entity that a person has to be able to bear both that could have rights of any kind was one rights and duties (People ex rel. NhRP v. that could assume duties or, even more Lavery, 2014, p. 151; Garner, 2014). Had the bizarrely, one that was part of some arbi- court checked Black’s sole source, it would trarily defined collection of entities, some have recognized that the source actually sup- of which could assume duties. ported the NhRP. When the NhRP brought A month later, a court in the fourth the error to the attention of the dictionary’s judicial department ruled against Kiko. It editor-in-chief, he immediately promised recognized the NhRP’s right to appeal and that the next volume would carry the correct ignored the Tommy court’s ruling by twice definition (B. A. Garner, personal commu- assuming, without deciding, that a chimpan- nication, 2018; NhRP, n.d.-c). zee could be a “person.” The court’s judges But that was too late for Tommy. The —who were both implicitly biased and Tommy court, without explanation or sup- deflecting—inexplicably based their deci- porting scientific evidence, claimed that sion on a fundamental misunderstanding of chimpanzees lack the capacity for duties and the NhRP’s purpose and objectives. They did not give the NhRP the opportunity to referred to the NhRP as “an organization dispute its conclusion (People ex rel. NhRP seeking better treatment and housing of v. Lavery, 2014, p. 152). The NhRP proceeded [. . .] nonhuman primates” and one that to prove the court wrong, again too late for “seeks only to change the conditions of con- Tommy. Most seriously, the Tommy court finement rather than the confinement itself” never offered any considered explanation of (NhRP ex rel. Kiko v. Presti, 2015, p. 1334). why the ability to bear legal duties should Consequently, the judges repeated in their influence whether an autonomous being, ruling that “habeas corpus does not lie where of any species, should have the right not to a petitioner seeks only to change the condi- be arbitrarily imprisoned; it failed to grap- tions of confinement rather than the con- ple with the obvious problem presented by finement itself” (p. 1335). the millions of New York infants, children, Even the Tommy court had not made the severely cognitively disabled and other this error, noting: “We have not been asked individuals who cannot bear duties, yet to evaluate the quality of Tommy’s current possess legal rights, including habeas corpus. living conditions in an effort to improve Instead, the court disposed of the issue in a his welfare” (People ex rel. NhRP v. Lavery, brief footnote: 2014, p. 149). The following year, New York County Supreme Court Justice Barbara To be sure, some humans are less able to bear Jaffe agreed: “The conditions under which legal duties or responsibilities than others. Hercules and Leo are confined are not These differences do not alter our analysis, challenged by petitioner [. . .] the sole issue

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Photo: Chimpanzee com­ is whether Hercules and Leo may be legally munities shoulder duties, cooperate, help and tend detained at all” (NhRP ex rel. Hercules and to injured or vulnerable community members, and Leo v. Stanley, 2015, p. 901). share hunting duties and Unsurprisingly the New York high court food. Bossou chimpanzees cracking oil palm nuts using declined to hear either Tommy’s or Kiko’s a stone anvil and hammer. appeal, as that court hears just a small per- © Susana Carvalho/KUPRI centage of the requests to appeal brought to it. New York high court judge Eugene M. Fahey voted “no” at the time of Kiko’s appeal to the fourth judicial department. He would come to regret his vote. The NhRP refiled Hercules and Leo’s habeas corpus petition in Manhattan in April 2015. Then, for the first time, a judge issued an order under a habeas corpus stat- ute on behalf of a nonhuman animal. That order—issued by Justice Barbara Jaffe— required Stony Brook University to appear in court and present a legally sufficient reason for imprisoning the chimpanzees. Two months after that hearing, Justice Jaffe released a lengthy opinion that turned back each procedural attack on the ability of the NhRP to bring its claim. The opinion agrees that “person” is not a synonym for “human” (NhRP ex rel. Hercules and Leo v. Stanley, 2015, p. 911), that the NhRP had sought the release of Hercules and Leo and not just a change in their conditions of confinement (p. 917), and that it could choose to file a second petition on their behalf (p. 910). However, Justice Jaffe felt bound by the Tommy holding:

Courts [. . .] are slow to embrace change, and occasionally seem reluctant to engage in broader, more inclusive interpretations of the law, if only to the modest extent of afford- ing them greater consideration. As Justice Kennedy aptly observed in Lawrence v. Texas, albeit in a different context, “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” [. . .] The pace may now be accelerating [. . .]. For now, however, given the precedent to which I am bound, [. . .] the petition for a writ of

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habeas corpus is denied and the proceeding miss the NhRP’s case on the grounds that is dismissed (NhRP ex rel. Hercules and Leo it was a successive petition, then noted in v. Stanley, 2015, pp. 917–18). passing, without explanation, that Tommy and Kiko could never have any rights because The NhRP now gathered numerous rights were reserved for humans (NhRP ex additional scientific affidavits that demon- rel. Tommy v. Lavery, 2017). This decision was strated that chimpanzees routinely shoulder so flawed that the NhRP extensively anno- duties within wild chimpanzee communities, tated its errors, sentence by sentence (Wise, Chimpanzees engage in lawful and rule-governed policing, 2017c). The NhRP again sought to appeal make tools to catch cooperate, help and tend to injured or vul- to the high court and the appeal was denied insects;“ they recognize nerable community members, share hunting once more, without comment, in May 2018. themselves in mirrors, duties and food, and inform other commu- Then something extraordinary happened. photographs, and nity members about danger. These docu- Judge Eugene M. Fahey, who had voted television images; they ments also testified that captive chimpanzees in 2015 to deny Tommy and Kiko’s first appeals, imitate others; they shoulder duties among themselves and now became the first US high court judge exhibit compassion within mixed chimpanzee–human commu- to opine on the merits of the NhRP’s argu- and depression when nities, while engaging in promise-making ments and on the merits of the adverse deci- a community member and promise-keeping, doing chores and sions of the first, third and fourth depart- dies; they even moral behavior (Anderson, 2015; Boesch, ments. His view was that all their decisions display a sense of 2015; Goodall, 2015; Jensvold, 2015; McGrew, were incorrect (NhRP ex rel. Tommy v. humor. 2015; NhRP, n.d.-b; Savage-Rumgaugh, 2015). Lavery, 2018). The NhRP refiled Tommy and Kiko’s In his opinion, Judge Fahey singles out cases in Manhattan and both were sent to for special rebuke the courts’ argument ” Justice Jaffe, who said that the Tommy Court that chimpanzees cannot be persons simply was the proper place to address the legality “because they lack ‘the capacity or ability of Tommy’s detention and that the NhRP . . . to bear legal duties, or to be held legally could not file a second Tommy petition. accountable for their actions’” (NhRP ex rel. When the NhRP appealed to the first judicial Tommy v. Lavery, 2018, p. 1056). His opinion department, it refused to allow the appeal, goes on to say: just as the second department had done in 2014. This time the NhRP fought back, twice Petitioner and amici law professors Laurence demanding its right to appeal over the next H. Tribe, Justin Marceau, and Samuel year. When its demands were refused, it Wiseman question this assumption. Even if it took the unprecedented step of suing the first is correct, however, that nonhuman animals department in the first department and cannot bear duties, the same is true of human demanding that the court order itself to infants or comatose human adults, yet no follow the law. And it did (NhRP, n.d.-b). one would suppose that it is improper to The price for that success was steep: the seek a writ of habeas corpus on behalf of one’s justice’s questioning during oral arguments infant child [. . .] or a parent suffering from in March 2017 was unremittingly hostile. dementia [. . .]. In short, being a “moral The NhRP pointed out in vain that a 1972 agent” who can freely choose to act as moral- New York high court decision had made clear ity requires is not a necessary condition of that “human” and “person” are not synonyms being a “moral patient” who can be wronged and that personhood is “not a question of and may have the right to redress wrongs (see biological or ‘natural’ correspondence” (Byrn generally Tom Regan, The Case for Animal v. NYCHHC, 1972, p. 201). The court ruled Rights 151–156 [2d ed 2004]) (NhRP ex rel. that the lower court had the right to dis- Tommy v. Lavery, 2018, p. 1057).

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Fahey reasons that the first department’s past and plan for the future, the capacities of “conclusion that a chimpanzee cannot be self-awareness and self-control, and the abil- considered a ‘person’ and is not entitled to ity to communicate through sign language. habeas relief is in fact based on nothing more Chimpanzees make tools to catch insects; than the premise that a chimpanzee is not a they recognize themselves in mirrors, photo- member of the human species” (NhRP ex rel. graphs, and television images; they imitate Tommy v. Lavery, 2018, p. 1057). He goes on: others; they exhibit compassion and depres- sion when a community member dies; they I agree with the principle that all human beings even display a sense of humor. Moreover, the possess intrinsic dignity and value, and have amici philosophers with expertise in animal [. . .] the constitutional privilege of habeas ethics and related areas draw our attention to corpus, regardless of whether they are United recent evidence that chimpanzees demon- States citizens [. . .], but, in elevating our strate autonomy by self-initiating intentional, species, we should not lower the status of adequately informed actions, free of control- other highly intelligent species (NhRP ex rel. ling influences (NhRP ex rel. Tommy v. Lavery, Tommy v. Lavery, 2018, p. 1057). 2018, pp. 1057–8).

Fahey recognizes that the NhRP pre- Next, he chastises both the first and sented evidence that chimpanzees “are fourth departments in Tommy’s and Kiko’s autonomous, intelligent creatures” and urges cases for mistakenly insisting that the NhRP, his fellow judges to address the “manifest in the appellate division’s words, “does not injustice” involved in determining whether challenge the legality of the chimpanzees’ a nonhuman animal such as a chimpanzee detention, but merely seeks their transfer has the right to habeas corpus when to a different facility” (NhRP ex rel. Tommy deprived of liberty (NhRP ex rel. Tommy v. v. Lavery, 2018, p. 1058). He concludes that: Lavery, 2018, p. 1059). Fahey warns that “the question will have to be addressed In the interval since we first denied leave to eventually” and asks, “Can a nonhuman the Nonhuman Rights Project [. . .], I have animal be entitled to release from confine- struggled with whether this was the right ment through the writ of habeas corpus? decision [. . .]. I continue to question whether Should such a being be treated as a person the Court was right to deny leave in the first or as property, in essence a thing?” (p. 1056). instance. The issue whether a nonhuman Referring to a “dilemma,” he notes that animal has a fundamental right to liberty pro- judges will “have to recognize its complex- tected by the writ of habeas corpus is profound ity and confront it” (p. 1059). and far-reaching. It speaks to our relationship Fahey further points out that the answer with all the life around us. Ultimately, we to the question of whether a being has the will not be able to ignore it. While it may be “right to liberty protected by a writ of arguable that a chimpanzee is not a “person,” habeas corpus”: there is no doubt that it is not merely a thing (NhRP ex rel. Tommy v. Lavery, 2018, p. 1059). will depend on our assessment of the intrinsic nature of chimpanzees as a species. The record A second extraordinary event followed before us in the motion for leave to appeal one month later. The fourth department, contains unrebutted evidence, in the form of which had dismissed Kiko’s first case in 2014, affidavits from eminent primatologists, that was presented with a criminal defendant chimpanzees have advanced cognitive abili- convicted of vandalizing cars owned by a ties, including being able to remember the car dealership. The criminal mischief statute

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made it a crime to damage the property of On February 18, 2020, after hearing three a “person” and the defendant argued only a hours of argument over three days, Bronx human could be a “person.” Upholding the Supreme Court Justice Alison Tuitt rejected conviction, the court cited two cases that the Bronx Zoo’s claim that “Happy is happy” are discussed above. One of the cases had at the Bronx Zoo and found instead that made clear that “human” and “person” are “the arguments advanced by the NhRP are not synonyms and that personhood is “not extremely persuasive for transferring Happy a question of biological or ‘natural’ corre- from her solitary, lonely one-acre exhibit at spondence” (Byrn v. NYCHHC, 1972, p. 201). the Bronx Zoo to an elephant sanctuary.” The other case was Kiko’s, which the court Justice Tuitt also found that Happy is “an now cited to support the proposition that it extraordinary animal with complex cognitive was “common knowledge that personhood abilities, an intelligent being with advanced can and sometimes does attach to nonhuman analytical abilities akin to human beings.” entities like corporations or animals” (People Judge Eugene Fahey noted that he believes v. Graves, 2018, p. 617, emphasis added). that a chimpanzee is likely a legal person and is certainly not a thing, and wrote that Happy “is more than just a legal thing, or property” Expanding the US Legal and “is an intelligent, autonomous being Campaign to Include who should be treated with respect and Elephants dignity, and who may be entitled to liberty” (Nonhuman Rights, 2020). Justice Tuitt, In October 2018, backed by affidavits filed however, “regrettably” found that she could by renowned elephant researchers Lucy not order Happy’s release to a sanctuary Bates, Richard Byrne, Karen McComb, because she felt bound by the decision of Cynthia Moss and Joyce Poole, which dem- the first department, which “held that ani- onstrate that elephants, like chimpanzees, mals are not ‘persons’ entitled to rights and are extraordinarily cognitively complex and protections afforded by the writ of habeas autonomous beings, the NhRP sought a writ corpus” (NhRP ex rel. Tommy v. Lavery, 2017). of habeas corpus on behalf of an elephant Meanwhile, in November 2017, the NhRP named Happy, who had been imprisoned —backed by affidavits filed by the same in the Bronx Zoo for decades (Bates, 2017; preeminent elephant experts as in Happy’s Bryne, 2016; McComb, 2016; Moss, 2017; case—had sought a writ of habeas corpus NhRP, n.d.-a; Poole, 2016, 2018). on behalf of three elephants, Beulah, Karen In New York, it is possible to file a writ of and Minnie, who had for decades been habeas corpus in any of the state’s supreme forced to perform in a traveling circus in courts. The NhRP filed its case in Albion, Connecticut (NhRP, n.d.-a). Under that near Niagara Falls, because its appeals go state’s law, the court was required to issue to the fourth department, which had been the writ of habeas corpus unless it lacked relatively receptive to NhRP’s line of argu- jurisdiction or the petition was frivolous on mentation. A month later, that court issued its face (Nonhuman Rights, 2018). The court the second order under a habeas corpus refused to issue the writ on both grounds. statute on behalf of a nonhuman animal in Ignoring centuries of common law that New York State and the first ever on behalf permits a stranger to seek a writ of habeas of an elephant (NYS Supreme Court, 2018). corpus on behalf of an individual who is After another month, however, over the being privately detained, the court said the NhRP’s objection, the court reassigned the NhRP lacked the required standing because case to the Bronx Supreme Court. it did not have a preexisting relationship

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with the imprisoned elephants and because notice that the Appellate Court’s decision Photo: In 2017, the NhRP went to court on behalf of it had not alleged that a pre-existing relation- would turn on these issues, it had not ade- three elephants, Beulah, Karen and Minnie. The ship was not necessary. The court also said quately briefed the court or argued the case. case continues on behalf the case was “frivolous on its face as a matter During the appeal, Karen died; two months of Minnie, but both Beulah and Karen have since died. of law” as no one had ever filed such a case later, so did Beulah. Minnie at work. before; it thereby conflated “novel” with While the appeal was pending, the © Gigi Glendinning “frivolous,” ignoring the fact that every new NhRP sought a second writ of habeas cor- common law rule had once been sought for pus on behalf of the same three elephants, the first time (Choplin, 2017; NhRP, n.d.-a). this time arguing that a pre-existing relation- On appeal, in August 2019, the Con­necti­ ship with the elephants was not necessary. cut Appellate Court affirmed the judgment The lower court dismissed this second case of the lower court, but on entirely different on the grounds that it did not fundamen- grounds. It held that the NhRP lacked tally differ from the first case the NhRP had standing not because it had no pre-existing litigated. The NhRP appealed that deci- relationship with the elephants, but because sion, contending that it had not been given elephants were not persons and lacked the the required opportunity to fully and fairly capacity for duties required to form such litigate anything in the first case. Only after relationships (NhRP v. R.W. Commerford the NhRP filed its brief in the second case and Sons, Inc., 2019). As the NhRP had no did the decision in the first case issue.

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In October 2019, the NhRP asked the In contrast, the civil law system pre- Appellate Court for permission to file a sup- sents more disparate challenges. In these plemental brief in the second case, so as to jurisdictions, courts have no authority to be able to attack the reasoning of the court’s act outside of preexisting and codified core decision in the first case. This permission principles (Garner, 2014). Consequently, if was granted and the NhRP filed its supple- civil courts recognize only “humans” and mental brief in November 2019. The deci- “property,” then there is no legal mecha- sion in the case is pending. nism by which to acknowledge anything in Until 2013, no US court had ever been between. Such was the case in France, where presented with the claim that a nonhuman —under the 1804 Napoleonic civil code— animal could be a person with the capacity “animals” held the same status as “furni- for fundamental legal rights as part of a ture,” and thus shared the same legal rights long-term, sustained, strategic litigation as an armchair (French Parliament, 1804, campaign focused on gaining personhood art. 528). Only in February 2015 did France and rights for nonhuman animals. That year, recognize non-wild nonhuman animals as the Nonhuman Rights Project embarked on “living beings capable of sensitivity” (French just such a campaign to secure personhood Parliament, 2015, art. 2). Reportedly, this and certain fundamental legal rights—first was the first time a national regulation differ- for chimpanzees and then for elephants, in entiated nonhuman animals from property New York and subsequently in Connecticut. (Forte, 2015, p. 4). It intends to file further cases in California and Colorado in 2020. This campaign is Circumventing Civil Code beginning to see success and the NhRP for Sandra intends for it to alter the legal relationship between humans and other animals, both The French decision would soon inform an in captivity and in the wild. Argentine judge’s ruling. In November 2014, on behalf of Sandra, an orangutan at the Palermo Zoo in Buenos Aires, the Associa­ International Paths to tion of Officials and Attorneys for the Personhood: Beyond the Rights of Animals (AFADA) argued a writ of Common Law System habeas corpus against the city government and zoo. Although AFADA lost the case on In the United States, the NhRP has attempted appeal, the nation’s Federal Chamber of to capitalize on the common law system, in Criminal Cassation recognized that Sandra which courts can make new laws if no prior had limited rights and remanded the case to legislation exists (Garner, 2014). Should a a lower criminal court to evaluate allegations single court uphold a writ of habeas corpus of animal cruelty (CCC, 2014). A subsequent on behalf of a nonhuman animal, for exam- amparo legal action—an extraordinary legal ple, its decision would set a new precedent remedy for the protection of constitutional for judging future applications on behalf of rights—was considered by Judge Elena other nonhuman animals. While this might Amanda Liberatori, who proved sympa- constitute a victory for the personhood move- thetic to Sandra’s plight. Unable to change ment, it is arguably much more difficult to her legal recognition in the civil code, which secure, as the weight and scope of such a recognizes only “people” and “possessions,” precedent in common law will be clearly Judge Liberatori categorized Sandra as a “non- apparent to judges. human person,” acknowledging antecedent

State of the Apes Killing, Capture, Trade and Conservation 251 in the French decision of 2015 (AFADA v. neither in Argentina, nor in the Brazilian Photo: At the age of 33, Sandra was finally trans­ GCBA sobre amparo, 2015). In doing so, she sanctuary to which Sandra was to be relo- ferred to the Center for Great Apes in Wauchula, Florida. made it possible for Sandra to be offered cated, such that Judge Liberatori rejected © Center for Great Apes new rights beyond those awarded under the proposed transfer (GAP, 2017). Further, civil designations. She circumvented, rather Liberatori’s recognition of Sandra as a “non- than contravened, Argentina’s civil code. human person” was revoked by an appellate Since it was issued as part of a decision court in 2016. The judges did not go so far as in a criminal hearing, Judge Liberatori’s cat- to rule that Sandra is not a nonhuman person; egorization had no binding effect on Sandra’s rather, they considered her status to be irrel- legal status. Still, the judge was empowered evant, on the basis that, irrespective of the not only to order a committee to determine “positions that could be adopted in this what would constitute “adequate” conditions regard [. . .] there is no dispute whatsoever in for Sandra, but also to rule that the govern- this case that this animal must be protected ment must guarantee those conditions [and that] the suffering of animals must (AFADA v. GCBA sobre amparo, 2015). In be proscribed” (AFADA v. GCBA appeal, practice, “adequate” conditions were found 2016, pp. 1, 8).

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Nonetheless, for four years, Sandra NhRP. They are, conceivably, a reasonable continued to exist in conditions that were compromise. legally “inadequate” under all of the judges’ terms. Following the Palermo Zoo’s closure Personhood as a Means to an End in 2016, these conditions were arguably inferior to those in which she had lived at Civil code also presented novel challenges the time of AFADA’s filing (Fraundorfer, in Austria in February 2007, when a sanc- 2017). Sandra’s legal limbo therefore posited tuary that was housing Hiasl, a wild-caught practical questions for other pursuits of chimpanzee who had been the subject of personhood—specifically, those that call for pharmaceutical research, declared bank- the “release” of captive great apes. In Novem­ ruptcy. An Austrian businessman offered to ber 2019, at the age of 33, Sandra was finally donate “a large sum of money” to Hiasl and transferred to the Center for Great Apes in the Association Against Animal Factories, Wauchula, Florida (Shenoy, 2019). known by the German acronym VGT, on the condition that its president, Martin Sandra Sets the Stage Balluch, could reach an agreement with Hiasl as to how the money should be spent. for Cecilia As Hiasl was incapable of reaching an agree- In a few civil Although AFADA did not secure habeas ment, VGT petitioned the Mödling district law jurisdictions, corpus for Sandra, her case did set the stage court for Balluch to be appointed as Hiasl’s the“ consideration of for the group’s legal argument in a later court legal guardian. Under Austrian law, this ‘personhood’ for great filing. In 2016, AFADA’s attorneys applied required Hiasl to be recognized as a “person” apes has resulted in for habeas corpus—and won—on behalf (Balluch and Theuer, 2007). more explicit acknowl- of Cecilia, a chimpanzee at Argentina’s As the funds could simply have been edgment of rights, Mendoza Zoo. In her landmark decision, donated to VGT, the provision requiring demonstrating value Judge María Alejandra Mauricio stressed Hiasl’s agreement suggests that the donor in pursuing legal that her recognition of personhood could may have had an additional motive, such campaigns. not afford Cecilia human rights; indeed, as pushing a personhood petition. As when speaking to the press, she clarified Fraundorfer (2017) notes—and as the peti- that she had not referenced “the civil rights tioners themselves later acknowledged— ” enshrined in the civil code” (Tello, 2016). personhood would also pave the way for Rather, she recognized Cecilia’s status as Hiasl to sue the pharmaceutical company “in between” humans and objects, citing responsible for capturing him from the wild “rights specific to her species: to develop- in 1982, when he was an infant, and trans- ment, to life in her natural habitat” (AFADA ferring him to a laboratory and later a v. Mendoza Zoo and City, 2016; Tello, 2016). “windowless basement” (Balluch and Theuer, For Cecilia, the Brazilian sanctuary to 2007). Nonetheless, Eberhart Theuer, coun- which Sandra’s transfer was blocked quali- sel for VGT, argued that the petition was fied as “natural habitat”; by Mauricio’s simply a means to an end: “We’re not talk- order, Cecilia was promptly transferred ing about the right to vote here.” Instead, the there (AFADA v. Mendoza Zoo and City, petition sought recognition of more basic 2016, pp. 44–5). legal rights, namely “the right to life, the It is noteworthy that neither AFADA’s right not to be tortured, the right to freedom petitions, nor the judges’ decisions, aimed under certain conditions” (AP, 2007). to secure “human rights” for Sandra. The At the first of two hearings, Judge Barbara objectives of these cases are therefore fun- Breit expressed frustration that Hiasl had damentally different from those of the no documents to prove his identity. After

State of the Apes Killing, Capture, Trade and Conservation 253 humans testified to his origins on Hiasl’s that nonhuman animals are plaintiffs, not behalf, Breit ruled in a second hearing that defendants, as in these personhood cases of since Hiasl was neither mentally impaired great apes. Yet, in civil code, such precedents nor in imminent danger, a guardian could do not apply. As Judge Liberatori showed not be appointed. As rationale for her deci- in Argentina, the pursuit of personhood in sion, Breit also cited potential public per- civil jurisdictions will require creative solu- ception that humans with court-appointed tions in the face of codified legal parameters. legal guardians might be considered non- human (Balluch and Theuer, 2007). An Not All Cases Advance the Cause appeal by VGT was denied by the district court in May 2007, on the basis that only a Not all cases in civil law came as far as Although the guardian—who could not be appointed— Sandra’s or Cecilia’s. In October 2005, sev- government entirely could appeal. Citing Austria’s civil code, eral animal welfare organizations filed for ceased“ using three other courts denied subsequent appeals habeas corpus on behalf of Suiça, a female chimpanzees in for the same reason: the district court did chimpanzee in the Zoological Garden of November 2015, so in May 2007, the provincial court in the Salvador, in Bahia, Brazil, in pursuit of trans- invasive research on Wiener Neustadt in September 2007 and ferring her to the Great Apes Sanctuary of these beings is still the Supreme Court in Vienna in January Sorocaba in São Paulo. Judge Edmundo technically legal in the 2008 (AP, 2008; Balluch and Theuer, 2007). Cruz recognized that, under the law, he United States. In all cases, technical interpretations of could terminate the proceedings immedi- Austria’s civil code afforded no provision to ately, but instead he chose to admit the address the central question, namely whether debate “in order to provoke discussion ” Hiasl, as the appellant, was entitled to any around the event” (Cruz, 2006, p. 282). Judge legal standing (Fasel et al., 2016). Cruz even made a surreptitious visit to the A review of Hiasl’s case notes that Judge zoo as part of his own research, which he Breit left open the question as to whether documented in a lengthy opinion with intent Hiasl is a person: “in all her decisions and to “arouse jurists all over the country” to correspondence, she continuously wrote as address the central controversy: “Can a pri- if Hiasl was a person,” (Balluch and Theuer, mate be equated with a human being or 2007, p. 339). Indeed, the review and media not?” (p. 284). In this case, the habeas cor- reporting suggest that Breit was sympa- pus claim expired upon Suiça’s unexpected thetic to the cause, but that her hands were death in September 2005; Judge Cruz, who tied by civil code, with no potential to had ambiguously indicated he would rule in establish a common law precedent (Balluch favor of Suiça, was thus released from the and Theuer, 2007). obligation to issue a ruling (Cruz, 2006). Historically, civil code has secured “per- As Judge Cruz was not able to set a prec- sonhood”—or at least equivalent status— edent in civil law, local justices twice took when nonhuman animals were defendants. an opposite view in determining a case of Criminal trials of farm and domestic ani- habeas corpus for Jimmy, a chimpanzee in mals were especially abundant in medieval a private zoo in Niterói, Brazil. Jimmy’s times. In one such case, a pig was tried and case was rejected outright on the basis that convicted of murder in France in 1266, chimpanzees were not entitled to person- then sentenced to death by burning (Evans, hood rights. Coincidentally, before a fed- 1906). In Switzerland in 1474, a chicken was eral appeal could be filed, the zoo was tried in a “solemn” judicial proceeding and closed due to poor conditions and Jimmy burned for the “heinous” crime of laying was transferred to the Sorocaba sanctuary an egg (Walter, 1984). What has changed is (Fraundorfer, 2017).

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Beyond Individual Cases: By contrast, many other countries are Rights at the Taxonomic Level closer to recognizing personhood. With the possible exception of Gabon, the United Given that the NhRP aims to establish a States stood alone in its use of chimpanzees common law precedent in the United States, in invasive research in 2008 (Knight, 2008). its cases are focused on specific individuals By then, a number of countries had either and writs for habeas corpus on their behalf. ceased or banned such research in all great This approach is based on an understanding ape taxa, via law or policy. Specifically, the that—under US law—recognition of broader United Kingdom banned the use of great rights at the taxonomic level has lagged far apes in invasive research in 1997 (having behind that in other nations. It was the US ceased using them in 1986); New Zealand government, by order of Congress in 1960, in 1999; Australia and Sweden in 2003; the that first authorized the large-scale capture Netherlands in 2004; Austria and Japan in and importation of wild chimpanzees for 2006; and Germany in 2013 (having ceased invasive research (Grimm, 2017). By 1999, using them in 1992) (Federal Ministry of following intensive captive breeding after Food and Agriculture, n.d.; Knight, 2008). the AIDS epidemic, their numbers had Among these bans, Austria’s is the only one reached an all-time high of 1,500 individuals, that explicitly prohibits experimentation on most of whom were kept in government- gibbons (Knight, 2008). In some nations, run or federally sponsored laboratories (US exceptions apply for non-invasive behav- Congress, 2000). Although the govern- ioral research, or invasive work that is ment entirely ceased using chimpanzees in intended to benefit the individual; Knight November 2015, invasive research on these (2008) presents a useful summary of the beings is still technically legal in the United legislation. In 2010, the European Union States. Since the US Fish and Wildlife introduced a union-wide ban, following an Service designated captive chimpanzees earlier parliamentary declaration signed endangered in June 2015, however, permits by 433 of 786 members of the European must be obtained for such research—and Parliament (ADI, 2007; EU, 2010). The no researcher is known to have applied for number of signatories was the third high- one (Collins, 2015). est recorded for any declaration, of any It was a ruling effective April 2018 that kind, since 2000 (ADI, 2007). This single truly measured how slowly US law has come co-decision-based legislative procedure to afford protections to apes (US Fish and has since advanced rights across all member Wildlife Service, 2018). That decision, by the states of the European Union, including in US Fish and Wildlife Service, recognized nations with no prior domestic legislation on two species of orangutan—a full 22 years the use of great apes in research (EU, 2010). after the two were formally accepted by the Some nations have arguably gone much scientific community, and six months after further. Since 1999, New Zealand’s Animal a third new species was described in the Welfare Act has prohibited the use of “non- scientific literature (Nater et al., 2017; Xu human hominids” in any “research, testing, and Arnason, 1996). The challenge before or teaching” deemed not to be in the indi- the NhRP is therefore significant. If US law vidual’s best interests, or in those of their does not acknowledge species in a timely species, limiting their use to circumstances fashion—and if invasive studies on chim- under which the likely harm would not panzees are technically still legal—is it outweigh the overall benefits (Brosnahan, conceivable that US legislation might award 2000, p. 190; New Zealand Parliament, 1999; specific rights to named individuals? see Section II of this chapter). In 2008, the

State of the Apes Killing, Capture, Trade and Conservation 255

Spanish parliament approved resolutions to Photo: Given their social The Status of Captive needs and capabilities, afford some “statutory rights” to great apes, apes in captivity adjust to Apes: A Statistical Update their surroundings better if criminalizing their killing and banning they are part of groups of their use in medical experiments, in enter- While data on the number, location, origin compatible individuals. Gorilla Rehabilitation and tainment and in most for-profit activities, and welfare status of apes in captivity are Conservation Education excluding zoos (Nature, 2008). These resolu- needed to inform effective policies, such Center. © GRACE tions evolved from similar legislation passed information cannot be obtained for all cap- in the Balearic Islands, an autonomous com- tive settings. Some detailed data are avail- munity of Spain, in 2007 (Knight, 2008). able in the form of studbooks; voluntary Nonetheless, the efficacy and the value reporting by organizations, such as users of of such legislation must be appropriately Species360’s Zoological Information Man­ weighed. Just 28 chimpanzees and six agement System (ZIMS) (Species360, n.d.); orangutans lived in New Zealand at the time Japan’s Great Ape Information Network the Animal Welfare Act was passed; none (GAIN, n.d.); and open government records. were used for research, testing or teaching, In other cases, captive facilities themselves and there was no proposal to do so (Elder, voluntarily publish data in reports or pre- 2019). Further, the act does not prohibit sent them at conferences. Data on under- their commercial exploitation: just two regulated or illegal forms of captivity are months after it came into force, two chim- generally lacking; estimates from related panzees were sold to a Pacific Island circus, activities, such as law enforcement, proxy and one later died in her transport cage fol- measures, statistical models and other lowing unforeseen delays (Brosnahan, 2000). emerging technologies contribute to the While the precise number of great apes in knowledge base, but they cannot fill all of Spain and the Balearic Islands a decade ago the gaps (Clough and May, 2018; Stiles et is unclear, it is known to have been a fraction al., 2013). The dearth of data is especially of those in US biomedical laboratories. acute in habitat countries and surrounding

Chapter 8 Status of Captive Apes 256

areas, where captivity is more closely related Mellor and Webster, 2014; OIE, 2019). For to killing. broader comparisons, uniform or harmo- The number and status of captive apes nized measures are used. The Animal Pro­ vary in response to intrinsic and extrinsic tection Index (API), a national measure drivers. Regulations continue to shift in a that addresses risk and protective factors, number of ways that affect how apes may be is one such approach (WAP, n.d.-a). The API kept and used in captivity, as well as what scores indicators under five categories that risks they face in their natural habitats. The are significant to the protection and welfare welfare status of captive apes varies as a status of animals: recognition, governance, function of the type of captive environ- standards, education and awareness. The ment and biological traits of individuals in scores are then combined into an overall question. In some cases, demography can API score from A to G, where A represents also play a role; for example, adult and geri- the highest score (WAP, n.d.-b). This sec- atric individuals experience an increased tion reports API scores alongside other data risk of morbidity and mortality and might whenever possible. need different housing, or additional or specialized care. A range of other external factors, such as crime, corruption and Captive Apes in income inequality, can play indirect roles as Selected Regions well (Clough and May, 2018; Morris, 2013). In practice, using animal-based meas- Europe ures and outcomes to assess welfare and In total, the European data set for 2018 quality of life for individuals and groups is contains information on 2,391 apes in 226 the most rigorous approach (Hemsworth member institutions, whose holdings range et al., 2015; Mellor, Hunt and Gusset, 2015; from 1 to 54 apes per site (see Figure 8.1). Compared to the data reported in the pre- vious volume of State of the Apes, the overall FIGURE 8.1 increase in the number of captive individ- Apes in Selected European Zoos, by Taxon, 2012, 2016, uals was around 100 individuals, or less than and 2018 2% (Durham, 2018). In 2018, gibbons were Key: Bonobo Chimpanzee Gorilla Orangutan Gibbon the most common taxon in the sample, fol-

Apes in captivity (%) lowed by chimpanzees, gorillas, orangutans 100 and bonobos. The number of solitary apes

90 in the sample was small: 23 apes, or less than 754 784 774 80 1% of the total. Given their social needs and capabilities, apes in captivity adjust to their 70 surroundings better if they are part of groups 60 300 312 321 of compatible individuals. 50 424 440 444 The API score for European countries 40 in the data set varied considerably, from B 30 to F (see Table 8.1). In some countries with 20 698 697 721 high API scores, “white lists” are used to

10 designate which species may be kept, and 108 121 131 0 in no known cases are apes on such lists 2012 2016 2018 Note: Figures are drawn from aggregate data presented in species-holding reports submitted to (Durham and Phillipson, 2014). A growing Species360 in 2018. Some figures may reflect holdings from prior years. number of European countries have explicit Data sources: Durham (2015, fig. 8.1; 2018, fig. 8.3); Species360 (n.d.) bans on circuses and similar performances

State of the Apes Killing, Capture, Trade and Conservation 257

TABLE 8.1 ment (Huertas, Gallo and Galindo, 2014; API Score for Selected European Larkin, 2010). In certain areas, however, Countries, 2020 efforts to improve protections are gaining momentum. Some countries have adopted Country API score circus and performance bans, for example, Austria B and certain courts have heard arguments for and even granted some rights for indi- Belarus F vidual apes, including transfer to a sanctu- Denmark B ary (ADI, 2019; Henao and Calatrava, 2016; France C Román, 2015; Samuels, 2016; Shenoy, 2019; see Section I of this chapter). Germany C A limited number of sanctuaries oper- Italy C ate throughout Latin America, where most Netherlands B captive apes are kept in zoos and other forms of exhibition. In Brazil, four sanctu- Poland C aries associated with the Great Ape Project Romania D are home to 76 chimpanzees and 1 orang­ Russia D utan (J. Ramos, personal communication,

Spain C 2018). In the absence of strong mandates for reporting and enforcement, and in Sweden B view of the lack of comprehensive official Switzerland B figures on the number of apes in Latin

Turkey D America, estimates of the number of apes in captivity in this region relied on voluntar- Ukraine E ily reported data and direct inquiries (see United Kingdom B Figure 8.2).

Source: WAP (n.d.-a) The API scores for Latin American countries in the data set ranged from a C in Mexico to an E in Venezuela (see Table 8.2). (ADI, n.d.; Tyson, Draper and Turner, 2016). In Germany, courts initially ordered that a chimpanzee named Robby should be FIGURE 8.2 moved to live with other chimpanzees Estimated Number of Apes in Captivity in Latin America, after his live performances in a circus were by Taxon, 2018 stopped, but an appeal later permitted the Key: owner to keep him (BBC, 2018; Deutsche Chimpanzee: Welle, 2017). 170 (79%) Gibbon: 19 (9%) Latin America Gorilla: 12 (6%) Orangutan: 13 (6%) Zoos and private menageries have been maintained across Latin America for many decades (Horta Duarte, 2017). Poor welfare Note: Some figures are drawn from aggregate data presented in species-holding reports submitted for captive animals is a widespread concern to Species360 in 2018, which may reflect holdings from prior years. among the region’s veterinarians and wel- Data sources: Species360 (n.d.); personal communication in 2018 with C. Alzola; H. Castelán; C. Fernandes Cipreste; L. Fernández; A. Gabriella Ioli; M.V. Josué Rángel; H. Khoshen; E. Padrón fare groups, which cite weak regulation and Ramos; J. Ramos; M. Rodríguez González; E.J. Sacasa; C. Silva; Zoológico Nacional del Parquemet, enforcement as primary barriers to improve- Santiago, Chile

Chapter 8 Status of Captive Apes 258

TABLE 8.2 The majority of the apes accounted for API Score for Selected Latin American in this data set are kept in zoos; however, Countries, 2020 disaggregation by taxon reveals that the majority of chimpanzees and gibbons are Country API score kept in other settings. With respect to chim- Argentina E panzees, significant new regulatory restric- tions decreased the number of individuals in Brazil D US laboratories and other forms of captivity Chile D (Durham, 2015, 2018). As a result, for the first Colombia D time ever in the United States, the number of chimpanzees in sanctuaries now exceeds that Mexico C in any other captive setting (see Table 8.3). Peru D In 2018, the US government issued guidance Uruguay D on the process of transfers, which will sus- tain the shift from labs to sanctuaries (NIH, Venezuela E 2018). A small number of US ape sanctuar- Source: WAP (n.d.-a) ies, not all of which have accreditation status, provide care for chimpanzees, housing as United States few as 2 to more than 260. Among them is the Center for Great Apes, which is also the More than 2,600 apes live in captivity in sole US sanctuary to house orangutans—21 the United States, where chimpanzees and were in residence as of July 2019 (Center for gibbons are more numerous than gorillas Great Apes, n.d.). and orangutans (see Figure 8.3). Reflecting Although 384 captive gibbons were the slow life history of apes, overall numbers accounted for in the data, as reflected in for 2018 show little variation compared to the Figure 8.3, an even greater number are esti- numbers reported in prior volumes (Durham, mated to be undocumented, mostly as pets, 2018). The API score for the United States is but also in unaccredited exhibits or roadside D (WAP, n.d.-a). zoos. Nearly 300 privately owned gibbons accounted for in the first volume of State of FIGURE 8.3 the Apes fell out of the data set when the US Department of Agriculture placed new Number of Apes in Captivity in the United States, restrictions on access to records (Durham, by Taxon, 2018 2018, p. 257, box 8.3). Beyond accounting for Key: individual numbers, the restricted records Chimpanzee: include Animal Welfare Act inspection and 1,548 (59%) Gibbon: 384 (15%) violation details (Brulliard, 2017). Public inter- Gorilla: 355 (14%) est is a key point in new and ongoing law- Orangutan: suits to restore access (ALDF, 2018; Durham, 243 (9%) 2018; Wadman, 2017). Bonobo: 83 (3%) Note: Some figures are drawn from aggregate data presented in species-holding reports submitted Asia–Pacific to Species360 in 2018, which may reflect holdings from prior years.

Data sources: Center for Great Apes (n.d.); ChimpCARE (n.d.); Durham (2015, fig. 8.3); Durham and Oceania Phillipson (2014, table 10.6); Species360 (n.d.); personal communication in 2018 with B. Malinsky, Australia has an API score of D (WAP, A. Ott, B. Richards, A. Whitely and K. Zdrojewski; author visit to the International Primate Protection League, South Carolina, 2018; author review of documents for the Bonobo Species Survival Plan n.d.-a). Its Animal Welfare Strategy and (2018), Gorilla Species Survival Plan (2017), Orangutan Species Survival Plan (2017) National Implementation Plan, which

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TABLE 8.3 Number of Chimpanzees in Different Forms of Captivity in the United States, 2011–November 2018

Captivity type 2011a 2014b 2016c 2018d % change 2011–18

Biomedical labs 962 794 658 464 –52%

GFAS sanctuaries* 522 525 556 585 +12%

AZA zoos** 261 258 259 236 –10%

Exhibition*** 106 196 111 192 +81%

Dealer or pet owner 60 52 37 61 +2%

Entertainment 20 18 13 10 –50%

Total 1,931 1,843 1,634 1,548 –20%

Notes: * GFAS stands for Global Federation of Animal Sanctuaries. ** AZA stands for Association of Zoos and Aquariums. *** Exhibition comprises non-AZA zoos and other facilities that may or may not be open to the public. This category includes apes in sanctuaries that were not accredited during at least some reporting periods.

Data sources: a) Durham and Phillipson (2014, fig 10.2); b) Durham (2015, table 8.4); c) Durham (2018, table 8.1); d) ChimpCARE (n.d.) covers all sentient animals, is informed by by the likely harm to the individuals (New the Regional Animal Welfare Strategy for Zealand Parliament, 1999; see Section I of Asia, the Far East and Oceania (Australian this chapter). The latter stipulations reflect Gov­ernment, 2011; OIE, n.d.; WAP, n.d.-a). modern bioethical principles of beneficence Laws at the territory and state levels pro- and justice (Beauchamp, Ferdowsian and vide greater protections for animals, in part Gluck, 2014). In 2013, a regulatory review by stipulating exhibition standards and considered how applications to exhibit apes well-being guidelines on pain, distress and and other animals were handled; the process positive welfare (WAP, n.d.-a). Australia is was undertaken in response to concerns that home to one of the most well-studied zoo populations of chimpanzees and, until very recently, the oldest-known orangutan FIGURE 8.4 in captivity lived at Perth zoo (Hart, 2018; Apes in Captivity in Australia and New Zealand, Littleton, 2005). by Taxon, 2018 New Zealand, which has an API score of C, was among the first nations to adopt Key: Australia New Zealand legislation regarding the use of apes in labo- Number of apes ratory experiments (Knight, 2008; Taylor, 70 15 2001; WAP, n.d.-a). New Zealand’s Animal 60 50 Welfare Act 1999 generally restricts research 16 on “non-human hominids”—that is, great 40 apes. Under the act, authorities may approve 30 54 3 3 applications for proposed research on great 20 37 apes only if it meets strict ethical criteria, 10 17 18 following mandatory review by the National 0 Animal Ethics Advisory Council and proof Chimpanzee Gibbon Gorilla Orangutan Note: Figures are drawn from aggregate data presented in species-holding reports submitted to that the research is in the best interest of either Species360 in 2018; additional data come from the media sources cited below. Some figures may the apes involved or their species, and so long reflect holdings from prior years. No bonobos were reported. as the benefits derived are not outweighed Data sources: Durham (2015, fig. 8.1; 2018, fig. 8.3); Species360 (n.d.)

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included safety and animal welfare outcomes tries where reporting is mandatory, data (Environmental Protection Authority, 2013). coverage is superior and consistent across Overall conditions for captive apes in sources (Banes et al., 2018; Durham, 2018; Oceania are stable because the numbers GAIN, n.d.). are small and regulations well established. In addition, sanctuaries in Asia hold well The only available records for apes were for over 600 gibbons and 1,200 orangutans zoos and wildlife parks in Australia and New (Durham, 2018; see also Table 1.1). As Zealand. Given the nature and scope of the Chapter 1 of this volume shows, the number region’s zoo regulations and standards, few of apes held as pets, in amusement parks welfare risks exist beyond those associated and as tourist props throughout the region with long-term captivity—and the occa- appears to be on the rise, but more research sional escape or high-profile transfer (Hart, is needed to produce accurate estimates per 2018; Johnston, 2015; Lee, 2013; Mager, 2000; taxon (see also Chapter 4). Pasley, 2017). Figure 8.4 shows numbers of apes in each taxon for zoos in Australia and Africa New Zealand. Zoos house a small proportion of Africa’s captive apes—just over 5%. Altogether, data Asia for the continent’s zoos accounted for only In Asia, zoos hold many captive apes. Not 74 apes in 2018: 46 chimpanzees, 5 gorillas, counting Japan, database figures for 2018 22 gibbons and 1 orangutan (Species360, indicate that 25 gorillas, 436 gibbons, about n.d.). As noted earlier, the data reported 220 chimpanzees and 170 orangutans resided here were obtained in 2018, meaning that in zoos (Species360, n.d.). As noted earlier some figures could reflect earlier reporting in this chapter and in prior editions of State periods. Another consideration is data of the Apes, the availability and quality of coverage; the database lists relatively few data on the number of apes in captivity and institutions for Africa, in part because par- their welfare vary across countries and ticipation is voluntary and may involve regions, in part because of uneven rates of dues, such that reported values are likely to access and participation in reporting and be underestimates. membership databases. One extensive Sanctuaries and rescue centers thus review identified 466 orangutans in Asian account for nearly 95% of all apes reported zoos, considerably more than reported in to be in captivity in Africa. The numbers of the studbooks or databases (Banes et al., bonobos and gorillas held in sanctuaries 2018). As the study emphasizes, issues with are similar to those reported in the previ- the collection and sharing of information ous volume of State of the Apes: about 70 can be impediments for zoos, as they are and 118, respectively (Durham, 2018). In for this review and other research (Banes et contrast, the number of chimpanzees known al., 2018; Durham and Phillipson, 2014). to be in African sanctuaries has risen by Detailed data have been reported for more than 5% since the previous volume Japan in prior volumes of State of the Apes. (see Table 8.4). That increase reflects both The latest data show that populations in changes in reporting to data sources such as captivity in Japan are nearly static (less than Species360 and a higher number of rescues, 3% change since 2016): 6 bonobos, 311 chim- translocations and facility changes, includ- panzees, 21 gorillas, 47 orangutans and ing the following cases. 178 gibbons (Durham, 2018; GAIN, n.d.; In Ivory Coast, efforts to save a lone chim- Species360, n.d.). In Japan, as in other coun- panzee named Ponso prompted planning

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TABLE 8.4 Number of Chimpanzees in African Sanctuaries, 2011, 2015 and 2018

Country Number of sanctuaries 2011 2015 2018

Cameroon 4 244 246 247

DRC 6 85 109 117

Gabon 3 20 20 20

Gambia 1 77 106 101

Guinea 1 38 50 46

Ivory Coast 1 4 1 2

Kenya 1 44 39 39

Liberia 2 76 63 99

Nigeria 1 28 30 28

Republic of Congo 3 156 145 161

Sierra Leone 1 101 75 74

South Africa 1 33 13 33

Uganda 1 45 49 49

Zambia 1 120 126 120

Total 27 1,071 1,072 1,136

Data sources: Akatia (n.d.); Chimfunshi (n.d.); CSWCT (n.d.); Durham (2018, table 8.6); Durham and Phillipson (2014, table 10.7); HELP Congo (n.d.); J.A.C.K. (n.d.); JGI South Africa (n.d.); LCRP (n.d.); Ol Pejeta Conservancy (n.d.); Projet Primates (n.d.); SYCR (n.d.); personal communication with K. Conlee, 2018; J. Desmond, 2019; G. Le Flohic, 2018 for a sanctuary (Akatia, n.d.). The sanctu- A chimpanzee from Iraq was translocated ary site has been selected and, while other to the Sweetwaters Chimpanzee Sanctuary formalities are still in process, Akatia is cur- in Kenya, and an airlift rescue of an infant rently caring for one chimpanzee and three chimpanzee from Virunga National Park to other primates (E. Raballand, personal com- the Lwiro Primates Rehabilitation Center in munication, 2020). the Democratic Republic of Congo (DRC) More than 60 chimpanzees were rescued also received international media attention when a research laboratory was converted (Brulliard, 2018; Ohanesian, 2018). into a sanctuary in Liberia (Lange, 2017; K. Conlee, personal communication, 2018). Subsequently, a new and distinct initiative, Statistical Update Conclusion Liberia Chimpanzee Rescue and Protection While registration and reporting practices (LCRP), was established to accept infants and vary considerably around the globe, avail- others in need of care, regardless of origin able data suggest that the number of captive (LCRP, n.d.; J. Desmond, personal commu- apes in zoos remains relatively static. The nication, 2019). The LCRP sanctuary now demographics of captive populations in non- has more than 25 residents (J. Desmond, habitat countries are changing, such that personal communication, 2019). breeding and reproductive rates are lower

Chapter 8 Status of Captive Apes 262

overall and, as a result, the average age could rights accorded to all humans under these inter- increase over time.4 national treaties. In both non-habitat and habitat coun- 3 In practice, however, some indigenous and minor- tries, regulatory changes can lead to increases ity groups are regularly denied the personhood rights accorded to all humans under these inter- the number of apes in sanctuaries in the short national treaties. and intermediate term. Sanctuary capacity 4 Among the main drivers of these demographic can thus be a critical consideration for those changes are the US moratorium on breeding in who make and enforce laws and for the labs, which was followed by a major shift to sanc- many stakeholders with an interest in the tuaries, where sterilization and other forms of welfare and protection of apes. A shortage contraception are the norm. Moreover, zoos are of sanctuary capacity can negatively affect breeding more selectively, for example by focus- facility operations and practices, such as by ing on the most endangered species and exclud- ing hybrids, as noted in prior editions of State of encouraging re-release and translocation the Apes (Durham, 2015, 2018). under suboptimal conditions. Increases in the size or number of sanctuaries are often 5 Nonhuman Rights Project (www.nonhumanrights.org/). followed by surges in arrivals, highlighting that insufficient space for seized and vol- 6 D3 Theorem (https://d3theorem.com/). untarily released apes is a critical barrier to 7 Wisconsin National Primate Research Center enforcement and compliance. (www.primate.wisc.edu/). The past decade has seen an increase in attention to the rights of individual apes, growing scientific knowledge of the needs and capabilities of apes, and changing views on the ethics surrounding the lives of apes. These factors will continue to drive changes in welfare standards and captive care prac- tices. They may also provide context and increase the sense of urgency around the demand for sanctuary capacity and the critical need to curb the killing and capture of apes, and the trade in apes that fuels high, often unsustainable intake rates in habitat country rescue centers and sanctuaries.

Acknowledgments

Principal authors: Steven M. Wise, Esq.,5 Debra Durham6 and Graham L. Banes7

Endnotes 1 This section uses the term “nonhuman animal” to underscore that humans are also animals and, correspondingly, to avoid implying that only non- human animals are “animals.” 2 In practice, however, some indigenous and minor- ity groups are regularly denied the personhood

State of the Apes Killing, Capture, Trade and Conservation