Trial on Personhood for Chimp Iihias111

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Trial on personhood for chimp IIHias111

Martin Balluch 1 und Eberhart Theuer' [Verein Gegen Tierfabriken, Vienna, Austria, 2University of Vienna, Austria

Summary Zusammenfassung: Gerichtsverfahren zur Erlangung des Perso- In 1982, the chimp "Hiasl" was abducted from the Western nenrechts für den Schimpansen Hiasl African jungle to be used in scientific experiments in Austria. Der Schimpanse "Hiasl" wurde 1982 aus dem Dschungel West- Since his abduction was illegal, he was freed at the airport. Af- afrikas nach Österreich entführt, um hier zu Tierversuchen ver- ter long legal battles with the company responsible for his ab- wendet zu werden. Da es sich um einen illegalen Transport han- duction, he grew up in a humanfamily and now lives at a Vien- delte, wurde er am Flughafen von Zollbeamten befreit. Nach nese anima I shelter. In 2006, this shelter ran into financial langem Rechtsstreit wuchs Hiasl in einer menschlichen Familie difficulties and "Hiasl" was threatened with deportation. und dem Wiener Tierschutzhaus auf Durch finanzielle Schwie- Therefore in 2007, his close [riends started legal procedures to rigkeiten des Tierschutzhauses Ende 2006 war er plötzlich mit have him declared a person and to have a legal guardian ap- Abschiebung ins Ausland bedroht. Deshalb begannen seine pointed for him to represent him in court. Foul' renowned ex- Freunde einen Sachwaltschaftsprozess am Bezirksgericht Möd- perts in anthropology, biology and law supported the case sei- fing für seine Anerkennung als Person. Vier anerkannte Exper- entifically. According to Austrian civil law, all members of the tinnen in Anthropologie, Biologie und Rechtswissenschaften genus "Homo" are persons. Sharing 99.4% of human genes, unterstützten diesen Antrag wissenschaftlich. Nach österreichi- chimps also belong into this genus. Secondly, it is argued that schem Zivilrecht sind alle Mitglieder der Gattung Mensch in the context of civil law the definition of person biologically ("Homo") Personen. Schimpansen, die 99,4% der Gene mit means possessing a "theory of mind", which chimps do. Only if Homo sapiens teilen, gehören zu dieser Gattung. Zweitens kann "Hiasl" is accepted as a person, his interests will matter and he aus dem Kontext des Zivilrechts herausgelesen werden, dass je- can be represented in a legal case against his deportation, so ne Wesen Personen sind, die eine" Theory of Mind" haben. that justice could be done. Only as aperson, he can collect Auch dazu gehören Schimpansen. Nur wenn Hiasl als Person money for himself. And only as a person, he could start legal anerkannt ist, können seine Interessen vor einem Gericht re- procedures, claiming for damages against those responsible for präsentiert werden, kann er in einem Verfahren seine Abschie- his abduction, to secure his future. bung bekämpfen oder einen Schadenersatzprozess gegen dieje- nigen führen, die für seine Situation verantwortlich sind.

Keywords: Animal rights, personhood, legal guardianfor a chimp, Hiasl

1 Introduction - Hiasl's story and boarded onto a plane. On 29th April cage size increased to 1.5 m x 1.2 m, de- 1982, together with 11 other baby pending on the weight of the anirnals, The chimpanzee Matthias "Hiasl" Pan, chimps, he arrived at Vienna Internation- When the new primate centre in Orth as he is now known, was born in 1981 in al Airport Schwechat. He and a young opened up on 23rd May 1992, it con- the jungle of Sierra Leone, Western female chimp called Rosi, who, like Hi- tained 56 single cages of 4.85 m2 each Africa, into a tribe of Troglodytes verus asl, was also approximately 10 months (about 2.2 m x 2.2 m) in the windowless chimps. In those days, research labs, old, were destined to go to the company basement of the building. On 17th zoos and circuses were very interested in Immuno's laboratory in Orth on the November 1999, the company Baxter, chimps caught in the wild and were pre- Danube, 30 km East of Vienna, for med- which took over Immuno, stopped the pared to pay a large ransom for their cap- ical experiments in the context of hepati- experiments on chimps and started a re- ture. In Sierra Leone, a wild animal trad- tis and AIDS research. At that time, Im- habilitation project with the surviving 44 er of Austrian origin named Dr. Sitter muno was trying to build a large chimp chimps from the lab, almost 20 of whom caught a number ofbaby chimps to send colony at their lab in order to breed these had been infected with a hepatitis virus them over to Austria. For the price of animals as experimental tools. By 1989, or HIY or both. (Balluch, 2003) 460,000 Austrian Schillings (correspond- Immuno had 53 chimps, only 2 of which This scenario was meant to be Hiasl's ing to 33,500 Euro) Hiasl's fate was de- were not wild caught. For the chimps, and Rosi's fate when they arrived as little cided. His mother was shot; he was being in the lab meant living in tiny babies in their boxes at the airport. An- ripped from her dead body, aged only 10 cages. At the beginning, the cage dirnen- other baby chimp, Henry, had been or- months, and he was stuffed into a box sions were about 0.7 m x 1.2 m, later the dered by the Viennese zoo dealer Walter

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Ullrich, and the remaining 9 of the 12 ba- rights activists and prevented from tak- The shelter appealed against this deci- by chirnps from the shipment were to be ing them. The activists, many of whom sion. At the beginning of 1989, indepen- taken over by the animal dealer H. Dem- had befriended the chirnps and loved dently from this case, the Austrian Par- mer in Vienna. However, on the day be- them dearly, were not wiJling to allow liament added a new paragraph to the fore their arrival, on 28th April 1982, these individuals to be delivered to their Austrian civil law code dealing with the Austria signed the Convention on Inter- fate inside the research lab. An offer was property status of animals. Article 285 of national Trade of Endangered Species made to buy the chimps, but Immuno de- the civil law code states that any entity CITES, an international treaty originally c1ined. that is not a person is a thing, implicitly drawn up in 1973 to protect wildlife Since Immuno was not able to get their dec1aring a11non-human animals as be- against over-exploitation. As a result, the hands on the two chirnps, on lüth July ing things. To this Article, a new section, 12 chirnps did not have the necessary 1985, they started legal procedures Article 285a, was added that explicitly CITES documents, so that their arrival in against the Republic of Austria to legally states that animals are not things, but that Austria was essentially illegal. Anima] request removing the chirnps from those they shall be treated as things unless spe- rights activists had received a tip-off and caring humans by physical force. The cific laws exist ruling otherwise. Refer- together with customs officers seized the charge was based on ArticJe 137 of the ring to this new piece of legislation at the 12 babies and freed them from their box- Austrian constitution, which deals with High Court appeal, the anima I shelter ar- es. On 6th May 1982, Vienna magistrates property rights claims against the Repub- gued that animals, not being things, have ruled to confiscate Hiasl and the other ]ic. For the zoo dealer Walter Ullrich, a value in thernselves, which goes be- chirnps for being unlawful imports in such court proceedings were not to his yond the value of property for the owners contravention of Artic1e 12 (2) of the liking. Therefore, on 16th December of the property. Additionally, they con- CITES agreement. The 9 Demmer 1985, he agreed to sell "his" chimp Hen- tended that in the case at hand this value chirnps were handed over to the Vienna ry to the animal shelter for 48,000 should count higher than the property zoo, where all of them died soon after. Schillings (3,500 Euro). Since the shelter value of the utility of the chirnps as ex- On 17th May 1982, Hiasl, Rosi and Hen- was not equipped to permanently house perimental tools for Immuno's research ry were officially placed into the care of the chirnp, one year later, on 10th Decem- lab. However, on 27th September 1989, the Vienna animal shelter, where a care ber 1986, they handed Henry on to the the High Court ruled that, Article 285a person took them horne to raise them in a zoo in Heidelberg, Gerrnany, where the notwithstanding, non-human animals human family together with his own hu- chimp died, just as the other chirnps had continue to be things and that they have man children. Hiasl, hence, is socialized died in the zoo in Vienna. no value in themselves. Therefore the like a human and considers hirnself to be On 10th December 1986, the High property owner has the right to take pos- part of the human species. Until today, he Court decided upon Immuno's case session of his property, even if this im- reacts to other humans as being his social against the Republic of Austria in their plies suffering and death for the chimps. partners, his rivals or his sexual mates. favour. The judges ordered the govern- The shelter, however, once more refused More than a year later, on 14th July ment to enforce their ruling to hand over to comply; and the Immuno representa- 1983, Vienna magistrates found the the remaining chimps, Hiasl and Rosi, to tives did not dare to come back and to at- company Immuno guilty of breaching the research lab. On 23rd March 1987, the tempt obtaining their property. the CITES agreement and ruled that, Republic of Austria gave the animal shel- By that time, Hiasl and Rosi were al- therefore, Immuno cannot be considered ter 14 days to surrender the chirnps vol- ready 8th years old. Eventually, the two having legal pos session of Hiasl and untarily. The shelter refused. Instead of lost contact to their human family and Rosi. Immuno appealed against this de- using police force, on 11th June 1987, the permanently moved into a specially built cision. On 10th October 1983, this appeal Republic of Austria once again went to enclosure at the animal shelter in Vienna. was refused. Hence, Immuno went to the court against the shelter. On 18th Febru- In 1999, the company Baxter, which had High Court, which, on 10th April 1984- ary 1988, the trial took place at the taken over Immuno, stopped their exper- almost 2 years after the arrival of the provincial court of civil law in Vienna. iments on chimps; and 3 years later they chirnps ruled in favour of the company. The shelter argued that it had a legal obli- officially donated Hiasl and Rosi to the On 18th September 1984, the High Court gation to protect animals from pain and shelter. In 2005, the actions of those ac- even ruled the penalty for breaching the suffering, which would undoubtedly tivists who, back in 1984, had prevented CITES agreement unlawful and ordered have been the consequence for Hiasl and Immuno from removing the chimps, the chirnps to be handed back. On 20th Rosi if they were to go into the lab. The were officially recognized as justified, November 1984, the mayor ofVienna is- judges, however, responded by saying since the Austrian Parliament unani- sued an order to the human family and that animals are things and as such, have mously voted to ban all experiments on the Vienna animal shelter to hand over no interests for themselves. According to apes. From I" January 2006 onwards, the chirnps to Immuno. When Immuno the court, the only interests existing in any experirnents, not only on chimps, but representatives arrived on 29th Novem- this case were the interests of the owner also on bonobos, gorillas, orang-utans ber 1984 to take over the chirnps who in Immuno in its property rights, which had and gibbons, became illegal in Austria if the meantime had turned 3 years old, been infringed upon (Wiener Tier- they are not for the benefit of the individ- they were physically blocked by animal schutzverein, 1988). ual concerned. To a large extent, this

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breakthrough resembles the human rights of philosophy of law at the University of vide this phrase with a scientific mean- declaration of Helsinki 1964, which pro- Vienna, Prof. Volker Sommer, professor ing, it must be interpreted as the term tects humans from medical experiments of anthropology at the University of Lon- "family" of the Linnean classification. against their own interests. don and Dr. Signe Preuschoft, biologist The biological family that today's Homo and chimp expert at the University of sapiens belongs to is the family of Great Zurich, who was the scientific head of Apes, which includes chimps. If the term 2 Initiation of a trial for the rehabilitation project of the ex-lab "human" has to be considered in its more personhood chirnps in Austria. With the help of these narrow sense, then it must refer to the expert statements, an argument was put genus "Homo", which, after all, is Latin In 2006, the Vienna animal shelter ran in- forward that a chirnp, and in particular for human. Now, while the question, to financial difficulties. In the bankruptcy the chimp Hiasl, is to be considered a which species belong to the genus Homo, proceedings, a business manager was put person in accordance with the Austrian might be decided upon controversially, a in charge of the assets of the shelter, with law. weil based scientific argument can be the aim to secure as much money as pos- made that chirnps (and bonobos) must be sible for those people the shelter was in- part of it as "Homo pan", The primary debted to. Usually, the shelter takes in 3 Why chimpsare persons in reason for this classification is the very homeless cats, dogs and other pet ani- accordancewith the Austrian close genetic relationship between Homo mals and seeks people willing to give civillaw sapiens and chimps, who share about these animals a new horne. The Vienna 99.4% of their genes (Hecht, 2003; Wild- City Council pays the shelter a fee for The Austrian civillaw code ABGB does man et al., 2003). A study looking at each animal found within the city bound- not define what a person is. Article 16 of amino acid chains, the building blocks of aries. Hiasl and Rosi, not being pets, are the civillaw code declares all humans as proteins, found that of 1271 positions on- a big liability for the shelter. Every being persons: "Every human is born Iy 0.4% differed between chirnps and month, they each cost approximately [... ] with rights and therefore has to be Homo sapiens (Bekoff, 2001). Other 5,000 Euro. If the shelter goes bankrupt, considered aperson." What, however, is pairs of species like brown bear and ice Hiasl and Rosi are likely to be one of the meant with the term "human"? The defi- bear, lion and tiger, horse and donkey, first creatures, who have to be given nition of "human" in Article 16 ABGB who are similarly closely related, do be- away. In addition, being 26 years old, has to be interpreted biologically. After long to the same genus (Balluch, 2005, they are still in the prime of their life, and all, beings acting like humans but not be- page 151). might be very valuable for a zoo or a cir- ing humans genetically (possibly com- Furthermore, at least theoretically if cus or, indeed, even a research lab doing puters or robots) are not included. On the not already experimentally, Homo sapi- experiments on chirnps abroad, in coun- other hand, individuals that are human ens and chimps, especially male chirnps tries, where this is still allowed. beings genetically, but who have mental and female Homo sapiens, can produce Towards the end of 2006, a person do- defects or who might have been social- fertile offspring (Balluch, 2005, page nated a large sum of money to the Presi- ized in a tribe of monkeys, definitely do 151). Homo sapiens have one chromo- dent of the animal rights association count as persons before the law. some less than chimps, since the chimp VGT (Verein gegen Tierfabriken - Asso- Until today, there is no judicial litera- chromosomes 2p and 2q have fused into ciation Against Animal Factories) under ture on this subject, since everybody ap- a large chromosome in Homo sapiens. the condition that he was only to take parently assumed that they knew which Having different numbers of chromo- possession of it if Hiasl was appointed a creatures are human and which are not. somes is not an absolute barrier to hy- legal guardian, who was allowed to re- This might have been a reasonable as- bridization, though. Similar mismatches ceive this money at the same time, and sumption to make in the pre-Darwinian are relatively common in existing who would be able to decide what the days of 1811, when the law was written. species, a phenomenon known as chro- two together would want to spend the However, since the onset of taking evolu- mosomal polymorphism. (http://en. money on. With this contract, the Presi- tion seriously, a number of different wikipedia.org/wiki/Humanzee) dent of the VGT was in a position to ar- species or sub-species of humans have The genetic structure of all the great gue to have legal standing to begin court been identified. Take, for example, Nean- apes, including Homo sapiens, is similar. procedures in order to obtain a legal derthals, Would they count as humans in Chromosomes 6, 13, 19, 21, 22, and X guardian for Hiasl, or rather, under his accordance with Article 16 ABGB, if, are structurally the same in all great apes. full name, for Matthias "Rias I" Pan. This say, they suddenly appeared alive in a re- 3, 11, 14, 15, 18, and 20 match between he did on 6th February 2007 at the district mote Himalayan valley? Or Homo ha- gorillas, chimpanzees and Homo sapiens. court in Mödling, Lower Austria. bilis, or Homo erectus, or the recently Chirnps and Homo sapiens match on 1, The application was supported by four discovered Homo jiorensis, who appar- 2p, 2q, 5, 7-10,12,16, andYas weil; and expert statements from Prof. Stefan ently stilllived only 12,000 years ago? they have recently been found to share a Hammer, professor of civil rights and In human rights charters (Heidelmey- large transposition from chromosome 1 constitutionallaw at the University ofVi- er, 1997), basic rights are recognized for to Y that is not found in any other ape. enna, Prof. Eva-Maria Maier, professor "members of the human family", To pro- This level of chromosomal similarity is

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roughly equivalent to that found in companies and associations. Only if the cause and effect might be said to have in- equines. Interfertility of horses and don- companies and associations are recog- terests. By being able to put him- or her- keys is common, although sterility of the nized as persons before the law, can their self into the position of other persons, the offspring (mules) is nearly universal. interests be represented in court. That person can appreciate the interests of Similar complexities and prevalent steril- clearly shows that "having interests" other persons as well, thereby recogniz- ity pertain to horse-zebra hybrids, or must be one defining aspect of being a ing personhood in others. This ability can horses, whose chromosomal disparity is person. be translated into biological terminology: very wide, with horses typically having However, since there is no judiciallit- A person is biologically defined as a be- 32 chromosomes and zebras possessing erature on the question of what consti- ing capable of recognizing the interests between 44 and 62 depending upon the tutes a person according to the Austrian of other beings, i.e. a person is a being species. In direct analogy to the chirnp- civil law code, we have to take into ac- who has what is called a "theory of human case, the Przewalski horse (Equus count the philosophical background of mind". przewalskiii with 33 chromosome pairs, this law. The Austrian civillaw code was This conclusion is backed up by the and the domestic horse (E. caballus) with prepared by a specific ABGB commis- detailed wording of Article 16 ABGB. 32 chromosome pairs, have been found sion, in which Franz von Zeiller was the This Article states that it can be recog- to be interfertile, and produce semi-fer- most important member. It was primarily nized through reason that all humans are tile offspring, where male hybrids can influenced by the ideas of the enlighten- born with rights and therefore are per- breed with female domestic horses. ment area, and, more specifically, by the sons. Reason in this context is hence (http.//en.wikipedia.org/wikilHumanzee). ideas of Immanuel Kant, who had pub- used to describe the ability to recognize a (Fig 1: Examples of species that are in- lished his thoughts only a few years be- rights-holder, i.e. aperson. This state- cluded in the genus Homo, i.e. that are fore. Within this context, it is the ability ment supports the conclusion derived humans) to reason, which must be addressed as earlier, that a person is a being that rec- To summarize, a reasonable argument the defining factor for personhood (Kant, ognizes personhood in other persons, i.e. can be made that the definition of the 1786; Schönecker and Wood, 2002; a being with a theory of mind. term "human" in Article 16 ABGB must Grondin, 1994, page 117 et seqq; Lehn- Indeed, chirnps in general, and Hiasl in include chimps, i.e. also the chimp Hiasl, er, 2005, page 22-30 with further refer- particular, have been shown to possess a On the other hand, Article 16 ABGB also ences). Zeiller hirnself speaks of the theory of mind (Taylor-Parker et al., makes it clear that not only humans are "dignity of a reasonable, free acting 1994; Sommer, 2000, page 131; Taylor- persons. If the terms "human" and "per- creature" (italics by author) when com- Parker and McKinney, 1999, page 145; son" were interchangeable, the statement menting on Article 16 ABGB (Zeiller, Savage-Rumbaugh and Lewin, 1994, that all humans are persons would not 1819 page 65). The ability to reason page 274). Within a behavioural enrich- make any sense. Indeed, judicially should include the ability for abstract ment program, Hiasl passed a mirror speaking, companies or associations, for thought, thinking in terms of cause and self-recognition test, he showed tool use instance, also can be persons before the effect and being able to put yourself into and understanding, played with human law. The reason for this is that companies the position of another being, i.e. being caretakers, watched TV and drew pic- and associations might have interests for able to predict what another being might tures. Hiasl can understand if caretakers themselves, which differ from the inter- feel or do next. A person who engages in want to lure hirn into doing something, ests of the people working within those abstract thought and thinking in terms of and then decide whether this is in his interests or not. Re can pretend to feel or do this or that, and actually willfully de- ceive others by intending something completely different, but hiding his actu- Genus al intentions. Those humans close to hirn, who know hirn best, clearly support the Human (homo) proposition that he has a theory of mind and does understand intentional states in other persons. This is supported by scientific findings ~~ // on the cognitive abilities of chimpanzees in general. There is practically no quali- ty or ability traditionally considered typically human that chimpanzees do not possess, too. They do not only use but al- homo florensls hcmo habills homo pan so produce tools, which they might reuse homo saplens homo neanderthalensis regularly. Chirnps create brushlike ends Fig. 1: Examples of species that are included in the genus Homo, i.e. out of sticks to fish for termites, stone that are humans. tools to break nuts and spears to go hunt-

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ing (Hooper, 2007). Their tools are so To summarize, Hiasl is, as a chirnp, a tal defect. Nevertheless he was abducted sophisticated, that it is hard for paleon- human according to the definition of the as a child, taken from his farnily and his tologists to decide whether certain stone term as it is used in Article 16 ABGB. native environment, and thus is seriously tools were made by Homo sapiens or However he is also a person according to traumatized. He had to grow up in an chimpanzee ancestors (Holmes, 2007). the definition of this term within the alien environment, where he is not capa- Chimpanzees show medical use of philosophical tradition of the enlighten- ble of an autonomous life, in contrast to plants - a medical knowledge that can ment, which is the basis for the Austrian the situation if he had been left in the jun- only have been accumulated by trial and civillaw code altogether. He therefore is gle, where he would not need a legal error and by passing it on over genera- a person according to today's Austrian guardian. Hiasl has been locked up for tions, i.e. culture. And chirnps do pass civillaw. (Fig. 2: Change in paradigm! A most of his Iife, which obviously does on knowledge from one generation to modern understanding of personhood in- not put hirn in the position to look after another as has been verified both in ob- cludes all great apes.) hirnself within the society he is living in. servations in the wild and in tests on He therefore needs a legal guardian to captive chirnps (Holmes, 2006). There- make sure his interests are being recog- fore, they possess culture, which is illus- 4 The trial for personhood nized and respected, and that he does not trated by the fact that different chim- lose out. panzee populations have different On 6th February 2007, the application for However these interests are seriously methods of tool making or using, of a legal guardian for the chimp Hiasl was threatened due to the imminent bankrupt- greeting and different rituals - very put to the Mödling district court in Low- cy of the animal shelter he is living at. He much like different populations within er Austria. The judge called two hear- is threatened with deportation into an un- the Homo sapiens species do have dif- ings. In the first, she bemoaned the fact known future, possibly abroad where ferent cultural traditions. Chimpanzees that Hiasl had no documents proving his many laws protecting hirn in Austria can learn to use sophisticated sign lan- identity. The applicants could remedy might not be existent. Also, as a person guage and to understand spoken English. this shortcoming, by providing witnesses with a legal guardian, he could receive do- Chimpanzees possess all aspects of ra- of his arrival as an abducted child in Aus- nations for hirnself instead of only as an tional thought including the ability of tria, as weIl as proof of his continued asset of the animal shelter, If the shelter thinking in causal relations and of draw- identity over the years in Austria since. goes bankrupt, such donations are lost to ing analogies (Matsuzawa, 2006; Stan- After the second hearing, the court issued hirn. If he would receive money personal- ford, 2002; Savage-Rumbaugh and adecision not to continue the proceed- ly, he would be able to keep it and make Lewin, 1994). Moreover, as they are able ings, arguing that Hiasl is not mentally good use of it for hirnself. Furthermore, he to adapt their behaviour to the knowl- handicapped and that he faces no immi- would also lose the donation that has edge, feelings and needs of others, they nent threat. According to Austrian law, jointly been given to hirn and the Presi- have a theory of mind, being able to act both of these factors are pre-conditions dent of the VGT, if he is not represented Machiavellian or altruistically by using for obtaining a legal guardian. by a legal guardian. All these aspects others for their purposes or helping them Regarding mental handicaps, the ap- clearly show an imminent threat, but also in need (Gornez, 1998). plicants conceded that Hiasl has no men- a clear disadvantage for him personally, should he not receive a legal guardian. The applicants appealed against the court's decision. On 9th May 2007, the Change in paradigm! judge eventually turned down the ap- Modern understanding of personhood peal, arguing that the applicant had no includes all . legal standing to appeal. By doing that, Great Apes! she left the question unanswered whether Hiasl is a person or not. Indeed, in all her decisions and in her correspondence, she continuously wrote as if Hiasl was a person. On 22nd May 2007, the applicants appealed against this decision to the provincial court in Wiener Neustadt. On 5tth September 2007, the provincial court turned down the appeal. The judges argued that according to Austrian law, only the legal guardian or the being him- or herself, for whom the applica- r J tion was seeking a legal guardian, could Fig. 2: Change in paradigm! A modern understanding of personhood appeal against a court decision on legal includes all great apes. guardianship.

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On 26tth September 2007, the appli- 5 Person versus thing infringed if somebody else does him cants made an appeal to the Austrian harm. His best protection would then be Supreme Court for Civil and Criminal Legislation distinguishes between a per- the law against criminal damage and the Matters (Oberster Gerichtshof). In this son and a thing on a very fundamental property rights of his owner. appeal, the applicants argue that the law level. While a person cannot be some- If, however, it is his owner, who does cited by the judges only applies when a one's property, but can own property hirn harm, then only his owner's interests legal guardian has already been appoint- him- or herself, a thing can be someone's will be represented in court. That means, ed. Otherwise it would make no sense to property and cannot own property itself. for example, he could be sold, evicted or say only the legal guardian can appeal. A person has interests, which can be pro- deported any time his owner sees a per- This law obviously pertains only to cases tected by rights, i.e. a person is a rights- sonal advantage in doing so. His own in- where an appointed legal guardian does holder, while a thing has no interests, terests would play no role whatsoever in not actually want to be the legal guardian which are represented or recognized by such proceedings. As a person, in con- or where the person having a legal legislation in court, and, in principle, trast, he could legally fight his eviction or guardian appointed wants to appeal cannot have rights. Things, however, can deportation. Only if he is recognized as a against this decision. Usually, in cases of be protected by laws, but not in their own person, the judges would have the option mentally handicapped humans, there will interest. Monuments, for example, can be of weighing his interests against those of only be appeals if a legal guardian has protected by specific laws, because it is the person trying to evict or deport hirn. been appointed, because that reduces the in the interest of society to protect them. It is only then that it would be possible to rights of the person receiving a legal It is not in the interest of a monument it- do justice to hirn. guardian. In Hiasl's case, to the contrary, self to be protected. The case is similar As a thing, he can be owned, but he however, the refusal to appoint a legal with non-human animals. According to cannot own anything hirnself. That guardian by the court means that he is the law they are things (in practice), means that nobody can donate money to deprived of his rights. Therefore the pro- hence have no interests and hence can Hiasl to secure his future or to buy his visions of appeals cited by the provincial only be protected by laws in the interest own land and to build his own enelosure. court do not apply. of society. The animal protection orn- As a thing, Hiasl will always be depen- Secondly, in other cases the Supreme budsman, for example, who has legal dent not only on the good will of his Court has already mied that, if necessary, standing in cases of animal abuse, has the owners, but also on their ability not to go elose relatives of a person can appeal in legal duty to represent the interests of so- bankrupt. If they do, no good will can his or her name, if he or she is not capa- ciety in animal protection, and not the in- protect hirn from being taken, evicted, ble to do so him- or herself. In the case of terests of animals themselves. Things, in sold or deported. As aperson, Hiasl Hiasl, the latter undoubtedly applies. contrast to persons, have no legal stand- could not be owned by anybody. In con- However since his elose relatives were ing. (Table 1: Qualities of persons and trast, through his legal guardian, he could killed during his abduction, or, in any things according to the law) raise his own money and secure his own event, are neither present nor capable of If Hiasl is seen as a thing and not as a future, independently of any misfortunes making such an appeal themselves, in ex- person, neither he, nor anyone else, can of others. tension of the meaning of this ruling, Hi- ensure that the laws protecting hirn are And last but not least, as a thing Hiasl asl's elose friends should be able to ap- being enforced. As a person, in such a has no legal standing by hirnself in any peal in his name. situation, he could either file charges cases he might wish to bring to court. His And thirdly it is argued, that the appli- against the authorities failing hirn, or he situation is not due to bad luck, but due cants have to have legal standing, be- could make court applications to uphold to certain people, companies and govern- cause their interests are at stake as weil. the law. If Hiasl is considered a thing, ments acting irresponsibly and illegally. After all, they have received the before- then only the interests of his owner are The damage infiicted upon Hiasl person- mentioned donation of a large sum, which they can only use if Hiasl is ap- Tab. 1: Qualities of persons and things according to the law pointed a legal guardian. In the appeal to the Supreme Court, the applicants stress Thing Person that this point has been missed altogether by the Provincial Court in its judg- Owns property No Yes ment. Is someone's property Yes No By the time of writing of this artiele, Interests represented in court No Yes the Supreme Court has not yet reached a Rights None Some verdict, but it has publiely stated that it does take the case very seriously. The ap- Protected by law (society's interest) Yes: protection Yes of monuments, plicants have vowed to bring the case to animals the European Court of Human Rights, Legal standing Yes should the Supreme Court fail them. No

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ally by those people, companies and gov- unscientific, dogmatic attitudes such as plicitly recognize basic rights for all ernments is very high. They have de- these, which, until today, are very influ- great apes is a political decision Parlia- stroyed his life. Was it not for sympathet- ential in many of society's actions, and ment has to take. And indeed, parliarnen- ic, caring people, he would long be dead which are used to justify them. What tary debates on this issue such as those by now. Why should it be the responsi- should actually have long been discarded being held in New Zealand and Spain bility of good hearted people, to fund his as religious fundamentalism, still perme- have already begun. Nevertheless, in this future, if there are culprits, who would ates laws and regulations. We are re- particular trial, the applicants only argue have the money to pay for what they have minded of debates between creationism that Hiasl is a person and not a thing ac- done? As a thing, his owner, the animal or intelligent design versus science, carding to today's Austrian civil law. shelter, could only claim money for the which seem to occur increasingly more This is not a political decision. There is damages the shelter has incurred. Dam- frequently these days. However, the rules no change of law necessary for Hiasl to ages to Hiasl hirnself would not count. of society about how we are to live to- be appointed a legal guardian. And since the animal shelter is not legal- gether, cannot depend on anybody's reli- In spite of this, if Hiasl was appointed ly obliged to care for Hiasl, the shelter gion. Should those, who do not believe in a legal guardian and hence recognized as cannot sue far the costs for caring for the same religion, be coerced with the a person, such a step would not give hirn hirn. If, however, Hiasl was recognized threat of violence into succumbing to the equal basic rights. lt would only recog- as aperson, the damage done to his life collective delusions of religious funda- nize hirn as a rights-holder instead of would count and he hirnself could start mentalists? hirn being a thing. Which rights he thus legal procedures against those responsi- There is only one plausible option to would have would still be an open ques- ble for it. He could sue the animal deal- be taken here, and that is to base any de- tion. For example, his rights could be ers, who abducted hirn and killed his cision concerning the whole of society solely to have the laws protecting hirn mother. He could sue the company, who on rational argumentation and scientific executed, i.e. to make hirn become a le- paid for his abduction in arder to do ex- facts. This is exactly what this trial at- gal player via his legal guardian, to give periments on hirn. And he could sue the tempts to achieve with the term "person" him legal standing. This would be the governments of those countries, who and with the status of non-human great consequence, if he were accepted as a gave permits for his abduction or for apes in society. Actually, there has been person. Furthermore, a political decision those experiments. All of these are re- a long tradition of such transitions from could be made to extend basic rights to sponsible for his situation, and all of religious dogma to secular wisdom re- life, liberty and freedom from harm to these should therefore be held liable to garding who should be considered a per- him. Nobody, however, speaks of ex- undo the damage as best they can. son or human since the beginning of the tending Hiasl's rights further to include enlightenment era. It was a secular argu- voting rights etc. In contrast to the basic ment winning against the Christian tra- rights, he could not benefit from those 6 Discussion dition that widened the terms to include extended rights. Hence they are not in "barbarians", women, people of colour, his interest and they do not need to be This trial, in many respects, touches on children and mentally handicapped peo- debated. the care beliefs in our society. Historical- ple, The time has now come to start the It has also been argued, that basic ly and culturally, many of our traditions debate whether to cross the Rubicon and rights for great apes would diminish the are based on Christian values, for whom include, for the first time in histary, be- idea of human rights altogether. On the oftentimes the most impartant aspect ings outside the biological species Homo contrary. Legal rights for great apes can seems to be to separate humans from sapiens (maybe keeping in mind that the be seen as a logical step forward in the other animals. Humans are supposedly categary of species is also an arbitrary development of human rights. Rather made in God's image, chirnps - very convention, as Darwin already wrote in than being a revolutionary change of tra- much resembling humans - apparently his seminal work "The origin of species" ditional human rights concepts, they are are not. This tradition can be traced from (Darwin, 1859). This trial on person- the next step evolutionarily (in both, the early church elders like Augustinus via hood of the chimp Hiasl has triggered general as well as the biological meaning inftuential catholic writers like Thomas more international media attention of the ward). A modern understanding of von Aquin up until today, when the worldwide than any other topic regard- human rights therefore necessarily must Salzburgian auxiliary bishop (Weih- ing animals, or even most other topics include at least the most basic rights for bischof) Laun declared: .Having a soul concerning Austria altogether. That great apes. This would not take away distinguishes humans from the world of alone proves that the time has come to anything from the rights that the species animals. [... ] No commonality and no question speciesism as the fundamental Homo sapiens possesses, but, on the con- similarity in the realm of the body can ideology of today. trary, would strengthen its position: In a cover up this deep gulf. The most hu- However the personhood trial does not world, where legal rights for all great manlike ape has, if you look at it, more in go as far as the Great Ape Project (Cava- apes are accepted, no-one could question common with tadpoles or amoebas than lieri and Singer, 1993), which demands the existence of rights for certain ethnic- humans." (http://www.kirchen.netl basic equal rights for all great apes to ities, minority groups, or genders of Ho- bischof/laun/texte). Unfartunately, it is life, liberty and freedom of harm. To ex- mo sapiens.

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Clear rational arguments based on sei- Heidelmeyer, Wolfgang (1997). Die Taylor-Parker, Sue, Mitchell, Robert W. entific facts have been put forward to ar- Menschenrechte. Paderborn: Ferdi- and Boccia, Maria L. (1994). Self- gue for the inclusion of chimps into the nand Schöningh. Awareness in Animals and Humans. realm of beings considered persons ac- Holmes, Bob (2006). Cultured chim- Developmental Perspectives. Cam- cording to today's Austrian civil law panzees pass on their skills. New Sei- bridge University Press. code. It remains to be seen whether these entist from 14th September 2006, 11. Taylor-Parker, Sue and McKinney, arguments will be heard and evaluated, Holmes, Bob (2007). Stone Age Chirnps Michael L. (1999). Origins of Intelli- or whether the old religious doctrine of were handy with a hammer. New Sei- gence. The Evolution of Cognitive In- humans being metaphysically different entistfrom 17th February 2007, 15. telligence in Monkeys, Apes and Hu- from all other animals will prevail. Hooper, Rowan (2007). Savannah mans. Baltimore: Johns Hopkins chirnps get armed and dangerous. New University Press. References Scientist from 3rd March 2007, 16. Wiener Tierschutzverein (1988). Stel- Balluch, Martin (2003). Jetzt sind sie Kant, Immanuel (1786). Grundlegung lungnahme des Wiener Tierschutzvere- endlich wieder Schimpansen. Tier- zur Metaphysik der Sitten. Hamburg: in zur Aufforderung der Republik schutz Konsequent 23, 18. Meiner Verlag 1999,63-69, Akademie Österreich, die beiden Schimpansen Balluch, Martin (2005). Die Kontinuität Ausgabe Bd. IV 436-440. Rosi und Hiasl der Immuno AG zu von Bewusstsein. Das naturwis- Lehner, Michaela (2005). Recht und übergeben. Der Tierfreund 2,4. senschaftliche Argument für Tierrechte. Ethik. Diss. Universität Wien. Wildman, Derek E., Uddin, Monica, Liu Wien: Guthmann-Peterson Verlag. Matsuzawa, Tetsuro (2006). Cognitive Guozhen et al. (2003). Implications of Bekoff, Mare (2001). Das unnötige Lei- Development in Chimpanzees. Heidel- Natural Selection in Shaping 99.4% den der Tiere. Freiburg im Breisgau: berg, Berlin New York: Springer Ver- Nonsynonymous DNA Identity Be- Verlag Herder. lag. tween Humans and Chimpanzees: En- Cavalieri, Paola and Singer, Peter (1993). Schönecker, Dieter and Wood, Allen W. larging Genus Homo. Proceedings of The Great Ape Project. Equality be- (2002). Kants "Grundlegung zur Meta- the National Academy of Seiences 100, yond Humanity. London: Fourth Es- physik der Sitten ". Kommentar, 142- 7181-7188. tate. 144. Paderbom: Ferdinand Schöningh. Zeiller, Franz von (1819). Natürliches Darwin, Charles (1859). On the origin of Savage-Rumbaugh, Sue and Levin, Privatrecht, cited in Posch and species by means of natural selection. Roger (1994). Kanzi. The Ape at the Schwimann 2005, ABGB Bd. 1 §16 Rz London. Brink of the Human Mind. New York: 2. Wien: Orac Verlag. Gomez, Juan Carlos (1998). Are Apes Wiley. Persons? The Case of Primate Inter- Sommer, Volker 2000. Von Menschen Correspondence to subjectivity. Etica & Animali 1998. und anderen Tieren. Essays zur Evolu- DDr. Martin BaHuch Grondin, Jean (1994). Kant zur Ein- tionsbiologie. Stuttgart: Hirzel. Verein gegen Tierfabriken führung. Hamburg: Junius Verlag. Stanford, Craig (2002). Significant Oth- Waidhausenstraße 13/1 Hecht, Jeff (2003). Chimps are Human, ers: The ape-human continuum and 1140 Vienna gene study implies. New Scientist from the quest for human nature. New York: Austria 19th May 2003. Basic Books Inc. e-mail: [email protected]

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