Yesterday, a New York state appeals court rejected an appeal filed by the Nonhuman Rights Project (NhRP) seeking legal rights for a pair of captive chimpanzees. It's a major setback for the group, but the battle to secure human-like legal protections for highly intelligent and self-aware animals is far from over.
Image: William Warby/Flickr
Tommy and Kiko will have to remain in their cages for the time being. A New York state appeals court unanimously agreed that the two chimps, named as the plaintiffs in the case, are not persons, and are thus not deserving of the same bodily autonomy protections afforded to humans. The petitioning lawyers were hoping to see the chimps released and sent to a sanctuary; Tommy is currently caged in a warehouse at a trailer dealership in Gloversville, NY, and Kiko is in a storefront cage in Niagara Falls, NY.
Efforts to grant legal personhood status to a select group of nonhuman animals, such as apes, elephants, dolphins and whales, have been around for a few years now. I've personally been involved in some of these initiatives, establishing the IEET's Rights of Nonhuman Persons Program and organising the world's first conference dedicated solely to the subject. I've also collaborated with the NhRP lawyers involved in the New York case in the past (but not in this case), and I'm very familiar with their efforts to date. Yesterday's appeals denial is most certainly a setback, but it isn't the end of the world. Simply put, the court's reasons for refusing to recognise chimps as persons was flawed; this decision won't stand the test of time. And as the judges themselves admitted, this issue is likely destined for a higher court, anyway.
In their denial of the appeal, the five justices upheld a prior ruling made by New York state Supreme Court Justice Barbara Jaffe back in December 2015. Nonhuman Rights Project lawyer Steven Wise had been seeking habeas corpus relief for the chimps, saying they had a right to bodily autonomy. A decision in favour of the chimps would have established an important precedent, as habeas corpus only applies to persons. The courts disagreed, yet again, and for the same reason: Chimps aren't persons because they're not humans.
To be fair, that isn't how the court framed it. The appeals justices simply said chimps aren't persons because they can't participate in the social contract. "The asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee's capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions," wrote Justice Troy Webber in his summary of the case.
The trouble is, there are many humans who can't "be held legally accountable for their actions", yet the law still considers them persons. In acknowledgement of this logical error, the court appeared to simply stamp its feet.
"Petitioner argues that the ability to acknowledge a legal duty or legal responsibility should not be determinative of entitlement to habeas relief, since, for example, infants cannot comprehend that they owe duties or responsibilities and a comatose person lacks sentience, yet both have legal rights," wrote Webber. "This argument ignores the fact that these are still human beings, members of the human community."
In other words, humans are persons because they're humans, and chimps aren't persons because they're not humans. Janneke Vink, a Philosophy of Law PhD Candidate and lecturer at Leiden University, agrees with my assessment.
— Janneke Vink (@Janneke_Vink) June 9, 2017
The justices, unwilling to establish a bombshell precedent at the state justice level, simply hand-waved the Nonhuman Rights Project's arguments aside, and ignored the mountain of scientific evidence presented at the case, including an expert affidavit submitted by renowned primatologist Jane Goodall. In a summary of the scientific evidence presented at the case, the justices wrote:
[Chimpanzees] have many human-like capabilities. These include recognising themselves in reflections; setting and acting toward goals such as obtaining food; undergoing cognitive development with brains having similar structures to those of humans; communicating about events in the past and their intentions for the future, such as by pointing or using sign language; exhibiting an awareness of others' different visual perspectives, such as by taking food only when it is out of their competitors' line of sight; protecting others in risky situations, such as when relatively strong chimpanzees will examine a road before guarding more vulnerable chimpanzees as they cross the road; deceiving others (implying that they are able to anticipate others' thoughts); making and using complex tools for hygiene, socialising, communicating, hunting, gathering, and fighting; counting and ordering items using numbers; engaging in moral behaviour, such as choosing to make fair offers and ostracizing chimpanzees who violate social norms; engaging in collective behaviour such as hunting in groups of chimpanzees adopting different roles; showing concern for the welfare of others, particularly their offspring, siblings, and even orphans they adopt; protecting territory and group security; resolving conflicts; and apologizing.
An impressive list of cognitive traits, yet apparently not enough to sway the judges. That said, Webber described the group's mission as "laudable", and admitted that it's "an issue better suited to the legislative process". He isn't entirely wrong, but talk about passing the buck.
Courts in New Zealand and India have granted legal personhood status to three rivers. The strange status is meant to protect the waters from pollution, but the measure could lead to unintended consequences, while undermining efforts to grant personhood status to living beings who actually deserve it.
The court also rejected arguments showing how other countries have assigned personhood status to nonhuman entities, such as rivers and national parks, saying these precedents are irrelevant to the United States.
In a statement, the Nonhuman Rights Project said it intends to seek an appeal of this decision to New York's highest court, the Court of Appeals. "For 2000 years all nonhuman animals have been legal things who lack the capacity for any legal rights," noted Wise in the statement. "This is not going to change without a struggle. That fight has begun and we remain confident that Tommy's and Kiko's fundamental right to bodily liberty will be recognised as a matter of justice so that they too may experience the freedom they so desperately deserve. Public opinion has begun to tilt in our favour since we started filing these lawsuits, likely as a result of them."
So Tommy and Kiko will have to stay in their cages, at least for the foreseeable future. The Nonhuman Rights Project says it's going to push forward, and in addition to fighting on behalf of chimps, it's gearing up to file cases on behalf of circus elephants and orca whales at SeaWorld in San Diego. This ain't over yet — not by a long shot.